Brosnan v Queensland Building and Construction Commission [2026] QCAT 47

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brosnan v Queensland Building and Construction Commission [2026] QCAT 47 PARTIES: TAMMY LEIGH BROSNAN (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent) WIMMER BUILDERS PTY LTD (second respondent) APPLICATION NO/S: GAR254-22 MATTER TYPE: General administrative review matters DELIVERED ON: 2 February 2026 HEARING DATE: 19 June 2025 HEARD AT: Richlands Magistrates Court DECISION OF: Member Howe ORDERS: The decision by Queensland Building and Construction Commission made 30 May 2022 not to issue a direction to rectify defective building work with respect to the items of complaint made by Tammy Leigh Brosnan on 21 November 2021 is confirmed save for complaints 12, 15, 16, 20, 22 and 27. Queensland Building and Construction Commission issue a direction to rectify defective building work to Wimmer Builders Pty Ltd in relation to complaints 12, 15, 16, 20, 22 and 27. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where QBCC refused to issue a direction to rectify defective building work – where the defects identified as non-structural as at date of reviewable decision were re- inspected prior to hearing – where QBCC accepted certain defects had deteriorated and amounted to structural defective work as at date of hearing – where the direction to rectify had in large part been based on the owner’s complaint being out of time for non-structural defective work – where that time limit did not apply to structural -- 1 of 9 -- 2 defective building work – where the builder should be directed to rectify structural defective work as at date of hearing Queensland Building and Construction Commission Act 1991 (Qld), s 71J(4), s 72(2) Buglar v Queensland Building and Construction Commission & Anor [2025] QCAT 371 APPEARANCES & REPRESENTATION: Applicant: Self-represented First Respondent: R Ensbey, Gadens Second Respondent: No appearance REASONS FOR DECISION [1] Ms Brosnan, the applicant, entered into a building contract with the second respondent, Wimmer Builders Pty Ltd (‘the builder’), for construction of a house for a fixed price of $286,880. [2] Practical completion occurred on or about 14 February 2020. [3] Ms Brosnan obtained a building inspection report from a private building inspector on 10 February 2020 which identified 34 defects with the construction work. She informed the builder. [4] She obtained a further report from her private inspector on 4 August 2020 in which a further 38 defects were noted. [5] On 21 November 2021 Ms Brosnan made complaint to the Queensland Building and Construction Commission (‘QBCC’) about 33 items of claimed defective work not remedied by the builder. [6] On 6 April 2022 QBCC decided not to issue the builder with a direction to rectify defective work, noting that her complaint was out of time given most complaints were for non-structural defective work and the remainder either did not involve building work or no defect was discernible. [7] Ms Brosnan sought internal review of that decision but the internal review decision made 30 May 2022 was to same effect. [8] Ms Brosnan now brings this application for external review of the decision in the Tribunal. Chronology [9] After practical completion and obtaining a private report on the construction from an independent building inspector, Ms Brosnan made a complaint about eight defects to QBCC on 11 May 2020 about defective work. [10] A building inspector attended on 20 July 2020 and identified some items of non- structural defective work and others involving contractual issues outside the -- 2 of 9 -- 3 jurisdiction of QBCC. The builder agreed to remedy the identified non-structural defects. [11] Ms Brosnan engaged the private building inspector to provide a further report on 4 August 2020. Further defects were identified. Ms Brosnan made a second complaint to QBCC of 33 defects on 21 November 2021. [12] Mr Nicolson, a QBCC building inspector, attended to investigate and made a report on 4 April 2022 finding most items of complaint amounted to non-structural defective work and two which were not defective work. QBCC declined to issue a Direction to Rectify the non-structural defects on the basis Ms Brosnan was out of time in making complaint. [13] Ms Brosnan sought internal review of that decision but the original decision was confirmed. [14] Ms Brosnan filed the application for external review in the Tribunal. [15] In light of advice from Ms Brosnan that the defects had substantially worsened since Mr Nicolson’s first inspection, Mr Nicolson reinspected the property and provided a second report on 9 August 2023. In that report he identified some defects formerly classified as non-structural defective building work had deteriorated and at the time of re-inspection were appropriately classed as structural defective building work. [16] Ms Brosnan provided the Tribunal and QBCC with photographs of defects as at approximately four to six weeks prior to hearing. The legislative scheme [17] By s 71J(4) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the Act’) a consumer may ask the QBCC to give a direction to rectify defective work concerning work the consumer considers defective but the request must be made within 12 months after the person becomes aware of the building work the person considers defective or incomplete. [18] By s 20K of the Act, QBCC is obliged to give effect to any policy or direction of the Queensland Building and Construction Board. The Board’s Rectification of Building Work Policy 2014 (‘the Policy’) s 3 provides: (3) Notification of defects 1. It is a policy of the Board that if a consumer is seeking the assistance of the Queensland Building and Construction Commission (QBCC) to issue a direction to a building contractor to rectify defective building work, the consumer must lodge a formal complaint with the QBCC of defective building work as soon as possible but no later than within 12 months of becoming aware of the defects. 2. The QBCC will then consider the issuing of direction to rectify to a building contractor: a. for structural defective building work, within 6 years and 3 months of the building work being completed; or b. for non-structural defective building work, within 12 months of the building work being completed. -- 3 of 9 -- 4 (5) Definitions In this policy – Defective building work means 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. Non-structural defective building work means defective building work (other than structural defective building work or residential construction work causing subsidence) that is faulty or unsatisfactory because: a. it does not meet a reasonable standard of construction or finish expected of a competent holder of a contractor’s licence of the relevant class; or b. it has caused a settling in period defect in a new building. Structural defective building work means defective building work (other than residential construction work causing subsidence) that is faulty or unsatisfactory because it does one or more of the following: a. adversely affects the structural performance of a building; b. adversely affects the health or safety of persons residing in or occupying a building; c. adversely affects the functional use of a building; d. allows water penetration into a building. [19] By s 72(2) if there is defective building work QBCC may direct the builder to rectify it. In making that decision QBCC may take into consideration all the circumstances considered reasonably relevant. The complaints [20] The items of complaint are conveniently dealt with together. Non-structural defective work [21] With respect to complaints 1, 2, 3, 5, 6, 7, 9, 10, 11, 13, 14, 17, 18, 19, 21, 23, 26, 31, 32 and 33 (a total of 20), QBCC determined these constituted non-structural defective work but QBCC was not prepared to direct the builder to remedy them because the complaints were made too late. [22] The complaints range from observable cracks in grout to shower mould to gapping in joinery, a paint bubble and missing screws in toilet pans. In the complaint Ms Brosnan identifies the date when each defect was first observed as 4 August 2020. [23] Complaint about these items of defective work were therefore not made within 12 months of Ms Brosnan becoming aware of them as required by the legislation and the Policy. Indeed the complaint to QBCC was made just three months short of two years after Ms Brosnan first became aware of the defects. -- 4 of 9 -- 5 [24] All 20 are non-structural items of defective building work because though they may be defective building work, none rise to the level of structural defective work. [25] According to the Policy, structural defective building work means defective building work (other than residential construction work causing subsidence) that is faulty or unsatisfactory because it adversely affects the structural performance of a building; adversely affects the health or safety of persons residing in or occupying a building; adversely affects the functional use of a building; or allows water penetration into a building. [26] Generally, structural defective work involves issues of significance threatening the safety of occupants or visitors or making the house uninhabitable. Non-structural defects do not adversely affect the structural integrity or performance of the building nor constitute a safety or health issue. [27] Ms Brosnan said at hearing that defects 3 and 6 concerning floor screws missing from two toilet pans amount to structural defective building work. Ms Brosnan says it is structural because if the pan moves the pipes beneath may break and water may enter the dwelling. Ms Brosnan said at hearing the pans had moved under her husband but Mr Nicolson also said at hearing that he had tried to move the pans but found them firm and without movement. He noted it was not uncommon to secure pans with silicone and the silicone applied here was holding firm. He therefore regarded the pans as adequately fixed. He said most in the building industry regarded silicone as the primary fixing agent for toilet pans. They should have screws as well however and accordingly he had noted the toilet fixings as non-structural defective work. I note the pans have been in place for six years however and there has been no breakage of pipes underneath them and no water entry. [28] Similarly Ms Brosnan’s speculation that cracks in grout or missing grout may allow water entry behind adjacent tiles. That is based on Ms Brosnan’s suspicion about the adequacy of the waterproofing behind or beneath the tiles. There is no evidence of such water entry according to Mr Nicolson. Mr Nicolson said that he could not replicate the high moisture readings behind tiles noted in the private building inspector’s reports on either of his visits on site. Mr Nicolson noted home owners were expected to perform regular maintenance of tiled areas where grout and sealants are applied because grout cracks and grout and sealants fall out. Grout falls out more regularly in timber homes such as Ms Brosnan’s (as opposed to brick). Had tiles lifted or a tile fallen out where there was cracked or missing grout or sealant and there may have been water entry, that might elevate the matter to a structural defect. However it would have to be investigated to show actual water entry. Waterproofing under tiles would usually prevent water entry and therefore prevent the defect being determined to be structural rather than non-structural in any case. [29] Similarly I note Mr Nicolson’s comments concerning the bowing of the decking. The owner was required to maintain appropriate stump heights. The builder had used adjustable stumps and if adjustment was necessary it was a matter of maintenance by the owner rather than defective building work on the part of the builder. [30] Some of these complaints involved gaps in window trim joints and external cladding, but the gaps involving window trim were very small and those involving gapping between butt ends of cladding boards were less than 3 mm in width which could be filled by sealant. That, Mr Nicolson pointed out, was acceptable according to the -- 5 of 9 -- 6 manufacturer’s specifications.1 Hence the gapping defects were identified as non- structural. Also concerning the small gaps at window trims, there was flashing behind the trim and therefore protection against minor water entry if it occurred. Hence the categorisation of those as non-structural building defects. [31] There is no challenge to Mr Nicolson’s measurements of the size of the gaps concerned nor about his evidence concerning the manufacturer’s gap specifications for butt joints in cladding. [32] Complaint 32 concerned the junction seal between the kitchen benchtop and the trim of a window at the tiled wall behind the benchtop. Mr Nicolson estimated the gap at 1 mm and considered it was due to shrinkage of the sealant used there rather than the poor work of the builder. It was a maintenance issue for the owner. It was non- structural and out of time under the Policy. [33] I accept that the 20 items of complaint considered involve non-structural defective building work under the Policy. Ms Brosnan gives no reason why the Policy’s limitation on and requirement of timely complaint within 12 months of becoming aware of the non-structural building defects should not apply. Mr Nicolson put most of these defects into the category of owner’s necessary maintenance. I see no reason why the Policy requirement about timely notice should not apply. [34] I find the decision by QBCC not to direct the builder to remedy the 20 items of non- structural defective work to have been the correct decision in the circumstances. No defect [35] Similarly complaints 4, 8, 24 and 25 may be considered together, and too, complaints 28 with 29 and 30. [36] QBCC found no defects discernible with respect to items 4, 8, 24 and 25. [37] Complaint 4 concerned a high moisture reading found in the shower perimeter tiles by the private building inspector engaged by Ms Brosnan. The high reading was taken on 4 August 2020. Mr Nicolson tested the same area and found normal readings. That was on 21 June 2023, nearly three years later. I accept that as at date of the QBCC re- inspection there was no high moisture reading and no defect identifiable. [38] Similarly with complaint 8 concerning a high moisture reading in the ensuite recorded on 4 August 2020. There was no high moisture reading found by Mr Nicolson on 21 June 2023. In confirmation of that Mr Nicolson also said he had found no sign of water damage to the underfloor particle board area beneath the shower. I accept Mr Nicolson’s conclusion that as at date of his inspection there was no high moisture defect found. [39] Complaint 24 concerned a bow to the front verandah after the builder adjusted stumps beneath on 10 March 2021. Mr Nicolson explored the bow and reported that there was only a 1–2 mm bow over a length of 2 metres, but that did not come within the requisite 4 mm in 2 metres noted in the QBCC Standard and Tolerances Guide: 15.8 Timber floor levels Within the first 12 months from completion of the work, floor levels within a room or area are defective if they differ by more than 10mm in any room or 1 James Hardie Technical Specification attachment Ex 1 page 524 at 548. -- 6 of 9 -- 7 area, or more than 4mm in any 2m length and such deviation adversely affects the safe use or reasonable amenity of the building. [40] Ms Brosnan did not challenge Mr Nicolson about use of the Guide nor the accuracy of Mr Nicolson’s measurements of the bow concerned and I accept this complaint does not amount to defective building work. [41] Complaint 25 concerned the shower dripping which caused the water pressure pump to start up. Mr Nicolson found no defect with respect to installation of the shower or pressure pump. It was perhaps something due to the shower handset but that did not constitute defective building work. [42] I accept Mr Nicolson’s assessment that none of these four items of complaint involve defective building work as defined in the Policy. [43] As for complaints 28, 29 and 30, all are associated with the floor and according to Ms Brosnan at hearing she had “fixed” them herself. They were no longer being pursued. Structural defective building work [44] Complaints 12, 15, 16, 20, 22 and 27 may also be conveniently dealt with together. [45] Complaints 12, 15, 16 and 20 involve excessive gapping or broken cladding edges or both at exterior cladding butt joints. Mr Nicolson noted the gapping had significantly increased from that noted by him in his first report to that in his second of 9 August 2023. [46] At hearing Ms Brosnan had provided updated photographs of the cladding defects taken approximately a month prior to hearing. Mr Nicolson thought the photographs were accurate depictions of the defects concerned. He concluded all now qualify as structural defective building work under the Policy whereas previously they were smaller and therefore non-structural. He suggested the relevant standards (mentioning AS2780 concrete slab standard which also covered movement of timber floors) set a broad brush threshold of 5 mm for a gap to constitute a structural defect. He added that potentially gaps over 3 mm might also qualify if there were quite a few of them. He noted the manufacturer of the cladding had made allowance for gaps up to 3 mm to be filled by sealant at butt joints in the product specifications. [47] The photographic evidence clearly shows significant gapping to all and broken edges to some of the butt joints the subject of complaint. Mr Nicolson said the cladding joints had in large part come loose and could be moved. I accept Mr Nicolson’s evidence about the size of the gaps at the butt joints. I also accept his evidence about gapping standards. Nothing he said was challenged. The builder may have been able to assist here but though the builder had been joined to the action the builder failed to appear or be otherwise involved in the proceedings. [48] I determine that complaints 12, 15, 16 and 20 identify structurally defective building work as at date of hearing. [49] In his first report Mr Nicolson had categorised complaint 22, another gapping problem, as non-structural defective building work. In his first report he had identified gaps at the joint of no more than .25 to 1 mm. Mr Nicolson said much the same thing in his second report, noting gaps from .25 to 1.75 mm. -- 7 of 9 -- 8 [50] At hearing however he said a recent photograph2 of the joint in question showed the cladding nailing had broken away from the cladding leaving the board without mechanical fixing. He accepted the broken join would permit water to enter behind the cladding. It would potentially cause damage to the noggin behind and as such now constituted structural defective building work. I accept what he says. The failure of the nailing to fix the cladding in place is clear from the photograph. I accept that complaint 22 is now structural defective building work. [51] The final complaint, 27, concerns water entry at the front door. Mr Nicolson said that when he returned for his second inspection he found water entering there. He did a water test and found considerable leaking at the side and under the bottom of the door. In his second report he noted gaps of 4 mm at the top of the door increasing to 5 mm in the middle and to 6 mm at the bottom, which exceeded an allowable tolerance of 5 mm. Mr Nicolson did not identify the standard or guide concerned but I accept the door is intended to prevent water entering the dwelling when shut and it does not do that. I conclude the complaint is made out and this defect now constitutes structural defective building work. Exercise of discretion [52] By s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the review by the Tribunal is intended to produce the correct and preferable decision and to that end the Tribunal must hear and decide the review by way of fresh hearing on the merits. It is not a matter of deciding whether the reviewable decision was right or wrong. It is a matter of deciding the correct decision on the basis of the evidence available to the Tribunal as at date of hearing. [53] The evidence available to the tribunal (which was not available to QBCC as at date of the reviewable decision) includes the current state of the defective work. Based on the evidence, which includes the evidence of Ms Brosnan and Mr Nicolson and the current photographs of the items of defective work complained about, I conclude that there currently exists the abovementioned six items of structural defective work. [54] The six items were categorised as non-structural defective building work by Mr Nicolson following his inspection on 4 April 2022. [55] Mr Nicolson received a copy of Ms Brosnan’s statement of evidence in course of the proceedings. In it Ms Brosnan noted some defects had worsened. She said some cladding was breaking away and becoming loose and water entering the house through a gap between door and jamb, rather than, as had been suggested to her, a weather strip at the bottom. Ms Brosnan did not mention in her statement of evidence when she first noticed the deterioration of the defects. In consequence of what she said in her statement of evidence however, Mr Nicolson re-inspected and found the said six items of complaint had worsened to become structural defective work. [56] Whilst s 71J and the Policy requires a complainant such as Ms Brosnan to make complaint about defective work within 12 months of becoming aware of it, Mr Ensbey for QBCC submitted that the 12 month rule did not apply here to the items of structural defective work. He did not say why. Mr Nicolson did not explain that either. It is unclear when Ms Brosnan first noticed the six non-structural building work defects had become structural building work defects. If the 12 month requirement was a factor 2 HB 405. -- 8 of 9 -- 9 it might be argued that service of Ms Brosnan’s statement of evidence filed 1 February 2023 was notice within time given, on Mr Nicolson’s evidence, the defects progressed from non-structural to structural defective building work sometime between his first inspection in April 2022 and his second in February 2023. But I find it is not necessary to determine that. [57] Section 72(2) of the Act grants QBCC a discretion to issue a direction to rectify defective building work. There is nothing in the legislation that makes exercise of that discretion contingent on prior complaint by an owner.3 The trigger for exercise of the discretion is QBCC forming the opinion that there is defective or incomplete building work present. Section 71J addresses the consumer’s right to ask QBCC to give a direction to rectify defective building work, not QBCC’s power to exercise its discretion to issue a direction to rectify defective building work. The Policy addresses something different again, requiring a consumer to lodge a formal complaint if they seek assistance from QBCC to issue a direction to rectify. However the Policy cannot detract from the statutory discretion to issue a direction to rectify defective building work pursuant to s 72(2) where QBCC forms the opinion that building work is defective and a direction should issue. [58] On Mr Nicolson’s re-inspection he found six items of structural defective building work. QBCC, and now the Tribunal, has a discretion to issue a direction to rectify to the builder, which I determine is appropriate in the circumstances. [59] The defects are clear from the photographs and Mr Nicolson categorises them as structural defective building work. There could be significant structural damage caused to the dwelling if the defects are not addressed. The view expressed by QBCC at hearing is that it is appropriate that the builder be directed to rectify the structural defective building work and the Tribunal is in a position to make an order to that effect. [60] I determine the discretion provided by s 72(2) of the Act should be exercised by the Tribunal and make orders as follows. Orders [61] Save with respect to items of complaint 12, 15, 16, 20, 22 and 27, the decision of QBCC not to issue a direction to rectify to the builder should be confirmed. [62] With respect to items 12, 15, 16, 20, 22 and 27 however, all items of structural defective building work, a direction to rectify should issue. 3 Buglar v Queensland Building and Construction Commission & Anor [2025] QCAT 371, [41] citing MacFarlane v Queensland Building and Construction Commission [2019] QCAT 408, [21]; Rosecove Pty Ltd v Queensland Building and Construction Commission & Anor [2023] QCAT 101, [37]–[38]; Cristiano v Queensland Building and Construction Commission & Anor [2024] QCAT 451, [24] -- 9 of 9 --