Brett Jennings Pty Ltd v Queensland Building and Construction Commission [2026] QCAT 229

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brett Jennings Pty Ltd v Queensland Building and Construction Commission [2026] QCAT 229 PARTIES: BRETT JENNINGS PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR283-24 MATTER TYPE: General administrative review matters DELIVERED ON: 12 May 2026 HEARING DATE: On the papers decision HEARD AT: Brisbane DECISION OF: Member Munasinghe ORDERS: The decision of the Queensland Building and Construction Commission directing Brett Jennings Pty Ltd to rectify defective building work is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where applicant contested the respondent’s direction to rectify defective building work – where applicant denied involvement in the building work – where Tribunal required to consider whether it would be unfair to issue the direction to rectify – where Tribunal found the applicant was inextricably connected to other entities who could have also performed the building work – where Tribunal concluded that the applicant’s denial of involvement in the work was a contrived artificiality – where Tribunal found that acceding to the applicant’s contentions would stymie the protective objects of the Queensland Building and Construction Commission Act 1991 (Qld) Human Rights Act 2019 (Qld) Queensland Building and Construction Commission Act 1991 Qld) -- 1 of 11 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) Queensland Building Services Authority v O’Brien [2002] QDC 329 R v His Honour Judge Miller and Builders’ Registration Board; ex parte Graham Evans & Co (Qld) Pty Ltd [1987] 2 Qd R 446 Wilson v Queensland Building Services Authority [2000] QBT 53 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) Applicant: Romans and Romans Lawyers Respondent: HWL Ebsworth Lawyers REASONS FOR DECISION [1] Brett Jennings Pty Ltd (‘applicant’) applies to the Tribunal to review a decision of the Queensland Building and Construction Commission (‘respondent’) to issue it with a direction to rectify defective building work. Background [2] The relevant building work involved the installation of a fibreglass pool and associated pool fencing (‘work’) at a residential home. The work was performed under a Contract signed on 2 June 2020 by the homeowner and an individual named Mr Brett Jennings. [3] Relevantly, in Item 2 of the Contract’s Schedule the stated name of the contractor was ‘Barrier Reef Pools Factory Direct Pty Ltd’ trading as ‘Barrier Reef Pools Factory Direct’ (‘BRP’). However, the QBCC licence number of the contractor stated the Schedule belonged to the applicant. [4] On 3 June 2020, the respondent issued a policy of insurance in the name of the Applicant. [5] The homeowner was dissatisfied about aspects of the work and complained to the respondent. In that complaint, the homeowner described the defective work as follows: Pool fencing glass panels have come apart from posts. Posts are leaning outwards forcing the glass panels to separate from the posts, glass is now being held in by silicon which has come away by post by approximately 4cms. [6] When QBCC Inspector Norimi inspected the work, she concluded that it amounted to a structural defect because the posts supporting the pool glazing were insufficiently imbedded to resist ground movement and settling. Consequently, the posts had fallen out of plumb and dislodged the glazing. Inspector Norimi opined that the work posed -- 2 of 11 -- 3 a health and safety risk to the occupants of the house and caused a loss of function of the pool area.1 [7] On 27 March 2024, pursuant to s 72 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), the respondent issued the applicant with a ‘Direction to Rectify and/or complete No.0112222’ (‘direction’). That direction is the subject of the present review. Applicant’s contentions [8] The applicant contends that the respondent’s decision ought to be set aside because: (a) It did not perform any building works. (b) The applicant’s QBCC licence number was erroneously populated on the contract. (c) Pursuant to s 72(5) of the QBCC Act, it would be unfair to give the applicant a direction. [9] The applicant relies on several affidavits under the hand of Mr Jennings and Sharon Jennings. [10] In an affidavit dated 6 September 2024, Mr Jennings relevantly deposed: (a) He was the sole director and secretary of BRP from 10 October 2019 until 20 May 2021. (b) BRP held a Trade Contractor Licence from 26 November 2019 until 12 December 2022, when it was suspended. (c) He founded the applicant company in or around March 2009. (d) From 5 March 2009 until 14 March 2023, he was a joint director of the applicant with Sharon Maree Jennings. (e) From 14 March 2023, Sharon Jennings has been the applicant’s sole director. (f) The applicant held a Trade Contractor Licence from 30 August 2019 to 20 July 2023, when it was suspended. (g) When he was a director of BRP, he frequently engaged with new clients but delegated various tasks to his team. (h) He recalls that in or around May 2020, the homeowner reached out to BRP and requested the installation of a pre-fabricated pool. (i) He vaguely recalls that Daniel Pakanis, who was an employee of BRP, populated the contract with the homeowner. (j) On 2 June 2020, he executed the contract at approximately the same time as the homeowner. (k) Upon reviewing the contract, he identified that it erroneously contained the applicant’s QBCC licence number, which he assumes was an administrative mistake by Mr Pakanis. 1 QBCC Initial Inspection Report dated 21 March 2024, p 3. -- 3 of 11 -- 4 (l) He knows that the contract was erroneously prepopulated because: (i) The applicant did not do the work. (ii) The applicant received no benefit from having its licence details populated in the contract. [11] In a second affidavit dated 30 July 2025, the Mr Jennings relevantly deposed: (a) When he was a director of BRP, he typically purchased insurance policies under that company’s name using his own personal credit card. BRP reimbursed him on those occasions. (b) He set up a Master Builders account for the applicant when it commenced operating. When creating a new contract, Master Builders automatically populates information buckets with the name of the contractor and licence number. (c) When Mr Jennings became the director of BRP, he assumes that the Master Builder’s account auto populated the applicant’s licence number into the contract between BRP and homeowner. (d) BRP employed an administrative officer named ‘Alice’ whose duties included completing insurance forms. (e) Because, the applicant’s licence number was on the Contract, Alice would have filled the insurance form using that number instead of BRP’s licence number. [12] In an affidavit to the Tribunal dated 6 September 2024, Sharon Maree Jennings deposes the following: (a) She was appointed a director of the applicant company on 14 March 2023. In that role she oversaw the applicant’s commercial operations which included accounts receivable and checking the applicant’s bank statements. (b) She has access custody and control of the applicant’s books and records. She reviewed those books from June 2020 to the date of her affidavit and can confirm that the applicant did not receive any money or consideration from the homeowner for the work. [13] In a second affidavit affirmed on 15 October 2024, Ms Jennings deposed that the applicant did not receive any monies from the homeowner for the period 1 June 2020 to 31 December 2020. Annexed to the affidavit were statements, tax invoices and receipts, issued by BRP. [14] The invoices BRP issued to the homeowner were printed on its letterhead and contained BRP’s ACN. The receipts BRP provided to the homeowner were also printed on its letterhead. [15] In a third affidavit dated 13 June 2025, Ms Jennings deposed that she reviewed the books and records of the applicant company which revealed that the applicant did not carry out the relevant work. Respondent’s contentions [16] In written submissions to the Tribunal, the respondent contended: -- 4 of 11 -- 5 (a) The applicant is taken to have carried out the building work pursuant to s 71I(1)(d) of the QBCC Act because the Notice of Cover for the works is addressed to the applicant, identifies the applicant as the contractor and includes the applicant’s licence number. The applicant, prior to the review, did not notify the respondent that the details of the Notice of Cover were incorrect. (b) The applicant is the person taken to carry out building work pursuant to s 71I(1)(e) of the QBCC Act, because its licence number is stated on the contract. (c) The applicant is the person taken to carry out building work pursuant to s 71I(1)(f) of the QBCC Act, because its licence number is stated on the insurance notification form. (d) It is a relevant consideration that at various times Mr Brett Jennings was the director and nominee of both BRP and the applicant. (e) In response to queries about defects, BRP employee told the homeowner, ‘Brett was not just the go-to, he was actually the licensed contractor for your entire works of your pool and fencing’. (f) The applicant has not provided evidence that BRP performed the work, notwithstanding Mr Jennings’ and Ms Jennings’ level of involvement with the company. (g) The existence of a contract between the homeowner and the applicant is not a prerequisite to the respondent’s ability to direct rectification. (h) Alternatively, if the Tribunal concludes that it would be unfair to require the applicant to rectify the work, it ought to require Mr Jennings to rectify the work. [17] In reply submissions, the applicant: (a) Contended that the respondent had not provided probative evidence that the applicant’s name was on the ‘insurance notification form’. (b) Submitted that where there is no contractual liability between a party and a homeowner, the appropriate exercise of discretion is not to issue a decision to rectify, as it is unfair. (c) Submitted that the Tribunal should afford weight to Mr Jennings’ affidavit of 6 September 2025, in which he deposed that the applicant did not receive any money or consideration for the work. (d) Purported to rely on R v His Honour Judge Miller and Builders’ Registration Board; ex parte Graham Evans & Co (Qld) Pty Ltd,2 Wilson v Queensland Building Services Authority3 and Queensland Building Services Authority v O’Brien,4 as authorities propounding legal principles that supported its application. 2 [1987] 2 Qd R 446, 458. 3 [2000] QBT 53. 4 [2002] QDC 329, [47] (‘O’Brien’). -- 5 of 11 -- 6 Relevant Law [18] Relevantly, by s 72(2) of the QBCC Act, if the respondent is satisfied that building work is defective, incomplete or has caused consequential damage, it may direct the person who carried out the work to rectify it. [19] Section 71I(1) defines the meaning of a ‘person who is taken to carry out building work’ to include: (a) A building contractor whose name, licence number and address are stated on the contract; and (b) A building contractor whose name is stated on the contract for carrying out the building work; and (c) A building contractor whose licence number is stated on the contract for carrying out the building work; and (d) A building contractor whose name is stated on an insurance notification form for the building work; and (e) A building contractor by whom the work was carried out; and (f) A person who, for profit or reward, carried out the building work; and (g) A person who is a building contractor under a domestic building contract who managed the carrying out of the building work; and (h) A person who was the nominee for a licenced contractor that is a company, for work carried out by the company while the person was the company’s nominee. [20] Schedule 2 of the QBCC Act provides that the term ‘building contractor’ generally, means a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor. [21] Notably, a person carries out building work whether the person carries it out personally or directly, or indirectly causes it to be carried out.5 Further, a person is taken to carry out building work if the person provides administration services, advisory services, management services or supervisory services for the work.6 [22] Section 72(3) of the QBCC Act provides that, in deciding whether to give the direction, the respondent 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). [23] Pursuant to s 72(5) of the QBCC Act the respondent is not required to give the direction if it is satisfied that, in the circumstances, it would be unfair to the person to give the direction. Consideration [24] Although not appear to be in dispute, I am satisfied about the following matters: 5 QBCC Act s 71I(2)(a). 6 Ibid s 71I(2)(b). -- 6 of 11 -- 7 (a) The work which is the subject of the review is ‘building work’ within the meaning of Schedule 2 of the QBCC Act. (b) The respondent made its decision within the statutory timeframe contained in s 72A(4) of the QBCC Act. (c) The work was defective. The term ‘defective’ is defined in the QBCC Act as including work that is ‘faulty or unsatisfactory’. Even a cursory examination of the site inspection photographs taken by Inspector Norimi reveal problems with the work. It was plainly unsatisfactory. The applicant has sensibly chosen not to contend otherwise. Who carried out the building work? [25] By application of s 71I(1) of the QBCC Act, the following persons are taken to have carried out the building work: (a) The applicant, because its licence number is stated on the contract. (b) The applicant, because its name is stated on the Notice of Cover for the work. (c) BRP, because its name is stated on the contract. (d) Mr Jennings, because he was BRP’s nominee at the relevant time. Further in my opinion he carried out the building work for profit or reward (noting that he was the director of BRP at the relevant time, likely purchased the insurance policy for the work using his credit card and signed the contract on BRP’s behalf). Any financial windfall BRP received from the work amounts to a reward for Mr Jennings. Should the Tribal exercise the discretion to not issue a direction [26] The more pertinent question that falls to be answered is whether the Tribunal ought to exercise the discretion conferred by s 72(2) of the QBCC Act to direct any, all, or none of the above persons to carry out the work? When exercising that discretion, s 72(5) permits a direction to not be issued if the decision maker is satisfied that, in the circumstances, it would be unfair to give the person the direction. [27] The relevant matters the Tribunal must consider when exercising the discretion to issue a direction are cogently articulated in O’Brien. In that case, McGill DCJ upheld the Queensland Building Tribunal’s decision to reverse a direction to rectify that the Queensland Building Services Authority issued to a building contractor named Mr O’Brien (‘builder’). To ensure compliance with the statutory insurance scheme, the builder permitted an unlicenced developer named Vinbridge Pty Ltd (‘Vinbridge’) to use his licence to perform the work. A person named Mr D’Rozario was the director of Vinbridge and controlled its activities. [28] Vinbridge employed and paid the subcontractors who performed the relevant work under Mr D’Rozario’s control. Although Vinbridge also engaged the builder to perform blockwork on the project, Mr D’Rozario was the ‘governing mind of the project’ and directly caused the building work to be carried out.7 When defects with the work manifested, the QBSA issued the builder with a rectification notice, 7 O’Brien [25]. -- 7 of 11 -- 8 notwithstanding that it was the other subcontractors who performed the defective work. Notably, by this stage, Vinbridge had become insolvent. [29] Ultimately, the Court decided that a direction should not be issued to the builder because: (a) the faults were more appropriately seen as being caused by either a subcontractor or Mr D’Rozario, rather than the builder.8 (b) Whilst it would be ‘better’ if the defective work were rectified, it was not a case where ‘the importance of rectification was such that it was necessary to find someone, even someone remotely involved with the defective work, to whom a direction could be given which would likely be carried out’. (c) It was not a case where the damage is the fault of the respondent in any relevant sense. (d) Mr D’Rozario would be more appropriate recipient of such a direction, noting that by this point it time, the Principal contractor Vinbridge had become insolvent. [30] O’Brien serves as authority for the following relevant propositions, each of which apply in the present matter: (a) Whether the defective work amounts to a breach of any contractual obligation or involves a breach of duty is not a matter which ought to be regarded as determinative of the discretionary decision to issue a notice. (b) If it is important that a defect be rectified for reasons beyond the interest of the business owners, such as reasons of public safety, there might be cause to find somebody who had some personal responsibility for it.9 (c) Where there are multiple potential recipients of a direction, it would be appropriate to issue a direction only to the recipient who is most appropriately seen as the person responsible for the defective or incomplete state of the work. Commonly but not inevitably that will be the principal contractor.10 (d) Where there is more than one person to whom a direction could be given, it does not necessarily follow that it would be right to exercise the discretion in respect of all of them, or indeed any of them.11 (e) ‘Because the head contractor has overall responsibility for the project, commonly that will be the head contractor. But there are all sorts of reasons why it could be appropriate for the authority to have available other persons to whom a direction might in an appropriate case be issued’.12 Should the Tribunal accept the applicant’s contention that it did not perform the work? 8 Ibid [52]. 9 Ibid [49]. 10 Ibid [34]. 11 Ibid [35]. 12 Ibid. -- 8 of 11 -- 9 [31] The applicant seeks to distance itself from the defective work. It contends that it would be unfair to give the applicant a direction because it was not a party to the contract; it did not perform the work; it did not receive any benefit from the work and its licence number was erroneously imprinted on the contract and insurance notification. The evidence before me however points to a significant degree of consanguinity and interconnectedness between the three entities associated with the work, namely Mr Jennings, the applicant and BRP. [32] When BRP purportedly contracted with the homeowner on 2 June 2020, Mr Jennings was its director and its nominee. At that time, he was also the co-director, shareholder and nominee of the applicant. Further, Mr Jennings admits that in his role as director he frequently engaged with new clients, including the homeowner who ‘reached out’ to him in May 2020. Mr Jennings also admitted using his personal credit card to purchase insurance policies for BRP. Around the time Ms Jennings was the director of the applicant, she was also a senior employee of BRP. [33] Although Ms Jennings deposed that the applicant did not receive any monies from Mr Koplick for the period 1 June 2020 to 31 December 2020, a perusal of the applicant’s bank statements for that period indicate that BRP deposited large sums of money into the applicant’s bank account.13 One among many examples of such deposits, is a direct credit of $10,624.41 from an entity bearing the name ‘BRP Factory Direct Barrier Reef POO’ around the time the work would have been performed. Even if the applicant did not receive any moneys or other consideration from the homeowner for the work, it does not axiomatically follow that the applicant did not carry out any building work, or that it was not connected with the work in some way. [34] The applicant, BRP and Mr Jennings appear to be so inextricably connected to each other, that demarcating the precise limits and boundaries of each of those entities involvement with the work is impossible. In O’Brien, McGill opined that if there are multiple potential recipients of a direction, it does not necessarily follow that it would be right to exercise the discretion in respect of all of them, or indeed any of them. [35] It occurs to me however that the inverse of the above proposition must also be true, namely that it might be appropriate to issue a direction to all recipients, if they are interconnected, notwithstanding the exact involvement of each entity in the work remains unclear. Here, a direction cannot be issued to BRP, because that company is deregistered. That leaves the applicant and Mr Jennings as potential recipients of a direction. [36] Section 71I(1) of the QBCC Act creates a statutory presumption that, once a circumstance stated in subsections (a) to (k) is established, a person is prima face taken to have carried out the building work. In my view, the onus then falls on that person to adduce sufficiently probative evidence to negative that presumption such that that Tribunal could be satisfied that it should not issue a direction, including because to do so would be unfair to the person. [37] To be clear, the onus imposed on the applicant is not a legal onus, rather it is a practical or forensic one. In O’Brien, McGill DCJ aptly opined that ‘it is not necessarily appropriate to talk in terms of onus in relation to administrative review, but in such circumstances, it is reasonable to say that the statutory power will not be exercised -- 9 of 11 -- 10 unless the applicant can persuade the tribunal that it is appropriate to exercise it, which for practical purposes comes to the same thing’.14 [38] The scant evidence the applicant has provided does not persuade me that the discretion to not issue a direction should be exercised in its favour. Except for bare denials contained in Mr and Mrs Jennings’ affidavits and a smattering of invoices and receipts from BRP, the applicant has not furnished the Tribunal with any compelling evidence that it did not perform the work. It certainly had the capacity to perform the work because it held a Trade Contractor Licence in Swimming Pool Construction, Installation and Maintenance at the relevant time.15 The invoices annexed to Ms Jennings’ affidavit merely indicate that BRP was renumerated for the work, but they do not disprove the applicant’s involvement. [39] I find Ms Jennings’ proclamation that her examination of the applicant’s books and records revealed that it did not carry out the work utterly unconvincing. Her affidavit does not disclose which records she looked at, nor are those records annexed to her affidavit. Evidence about the contents of documents purportedly relied on, but not provided to the Tribunal, is hearsay. Of course, hearsay evidence is admissible in this Tribunal but bare denials unsupported by documentary proof is hardly persuasive. [40] Further, Mr Jennings blames Mr Pakanis and Alice for the applicant’s inclusion on the Contract and Insurance Notification respectively. It is disingenuous for the applicant to cast aspersions about its employees without giving them the opportunity to respond or give evidence about that issue. I place limited weight on the applicant’s evidence about how its name came to be on the contract. [41] Moreover, it is reasonable to presume that the applicant, through evidence tendered by Mr Jennings, or Ms Jennings, could have easily demonstrated that BRP, rather than the applicant, performed the work. As a past director of BRP, Mr Jennings must have known which employees or subcontractors did the work. As a past senior employee of BRP, Ms Jennings must have held that same knowledge. The applicant could have compelled those witness to provide statements or to give oral evidence, yet it chose not to do so. There must be a plethora of documents and records relating to the work that the applicant could have easily obtained from BRP by using the Tribunal’s power to compel third parties to provide documents. Such evidence would have elucidated precisely who did the work and put the issue of the applicant’s complicity, or the absence of it, beyond doubt. The applicant’s failure to elicit the said evidence is inexplicable and is fatal to its case. [42] Ultimately, I am not persuaded that the applicant did not perform the building work. Corollary to that finding, I do not consider that it would be unfair to issue that applicant with a direction to rectify. In reaching that conclusion, I am mindful that there are important public health and safety reasons why the work should be rectified. The risk of death and injury, especially to children, that arises from defective pool fencing is obvious and requires no elaboration. [43] However, there is an even more important consideration at play here. Acceding to the applicant’s submissions will have the deleterious consequence of permitting a person 14 Ibid [37]. 15 Between 30 August 2019 and 22 August 2023, the applicant held a contractor’s licence issued pursuant to the QBCC Act bearing the number 1199469, in the class of ‘Swimming Pool Construction, Installation and Maintenance. -- 10 of 11 -- 11 who has (or is presumed to have) performed defective building work, to transpose its responsibility for rectifying those defects on a closely related corporation who also did the work, but that is subsequently deregistered. The applicant’s denial of responsibility for the work is a contrived artificiality that this Tribunal should not permit. To do so would stymie the plainly protective objects of the QBCC Act. Those objects inter alia include: (a) Maintaining proper standards in the industry. (b) Providing remedies for defective building work. (c) Ensuring persons involved in the production, supply or installation of building products are held responsible for the safety of the products and their use. [44] It is appropriate to briefly address the authorities put forward by the applicant. Its reliance on O’Brien is curious because that case serves as an authority for the proposition that it might be appropriate to hold other people involved with the work to account if the principal contractor cannot be pursued. That is precisely the situation that manifested in the present matter. [45] The respondent seeks to rely on R v His Honour Judge Miller and Builders’ Registration Board; ex parte Graham Evans & Co (Qld) Pty Ltd, which involved a builder whose use of a particular Elastoseal pitch, whilst confirming with the contract, nevertheless conflicted with its statutory duty to ensure materials were fit for purpose. The decision serves as authority for the proposition that that ‘the Board, in properly exercising its discretion, must in a proper case recognise the builder’s innocent position and afford him protection by the exercise of its discretion in the builder’s favour’. The facts of that case are therefore far removed from that of the present matter. [46] The applicant also relies on Wilson v Queensland Building Services Authority16 to advance the contention that a direction to rectify should not be upheld where a builder had neither contractual nor tortious liability to the owner. In that case, there was no building contract. As McGill DCJ aptly pointed out in O’Brien,17 the existence of contractual or tortious liability is ‘not a matter which ought to be regarded as necessarily determinative of the discretionary decision to issue a notice’. Also, in Wilson, the builder did not personally perform the work, rather it was performed by a sub-contractor which was ‘relevant to the issue of whether the Applicant personally bears any blame for what has occurred’. [47] For the reasons set out above, I propose to confirm the respondent’s decision to issue the applicant with a notice to rectify. In view of the findings that I have made about the applicant’s involvement in the building work, I consider it unnecessary to decide the respondent’s alternative submission that a direction should also issue to Mr Jennings. [48] I am mindful that the Tribunal must apply the Human Rights Act 2019 (Qld) (‘HR Act’) when considering this review. Having considered the various provisions of the HR Act, I do not consider it has any application to the present case. 16 [2000] QBT 53 (‘Wilson’). 17 [2002] QDC 329, [47]. -- 11 of 11 --