Dixonbuild Pty Ltd v Queensland Building and Construction Commission & Anor [2025] QCAT 568

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dixonbuild Pty Ltd v Queensland Building and Construction Commission & Anor [2025] QCAT 568 PARTIES: DIXONBUILD PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (First respondent) KIRSTY-LEA SEGADE (Second respondent) APPLICATION NO/S: GAR604-23 MATTER TYPE: General administrative review matters DELIVERED ON: 22 December 2025 HEARING DATE: 16 May 2025 HEARD AT: Brisbane DECISION OF: Member Paratz AM ORDERS: The decision of the Queensland Building and Construction Commission to issue a Direction to Rectify issued on 15 July 2024 is set aside. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether building work was defective – where the description of the location of the alleged defect was unclear and confused – whether a Direction to Rectify can be given without a complaint having been lodged with the Queensland Building and Construction Commission – whether a building inspector can rely on their expertise to assess a defect in the absence of photographs or measurements – whether it was fair to issue a Direction to Rectify Queensland Building and Construction Commission Act 1991 (Qld), s 72(3) Shilleto v Queensland Building and Construction Commission & Ors [2024] QCAT 137 APPEARANCES & REPRESENTATION: Applicant: Mr. C. Matthews of Counsel, instructed by CDI Lawyers -- 1 of 18 -- 2 Respondent: Ms. A. Hewish of HWL Ebsworth Lawyers. REASONS FOR DECISION [1] The Queensland Building and Construction Commission (‘QBCC’) made a decision on 15 July 2024 (in the course of reconsidering its earlier decision dated 8 August 2023) to issue a Direction to Rectify to Dixonbuild Pty Ltd (‘the Builder’) in respect of work conducted on a home at Cedar Vale in the State of Queensland. [2] The Builder filed an Application to review a decision in the Tribunal on 29 August 2023 as to the decision made on 15 July 2024. [3] I heard the matter on 16 May 2025. [4] Kirsty-Lea Seagade (‘the Owner’), was a respondent in the matter. She did not attend the hearing. I was satisfied that she had been given proper notice of the hearing, and that it was appropriate to proceed in her absence. [5] At the end of the hearing, I gave directions for the filing of Closing Submissions. [6] The Builder filed its closing submissions on 11 June 2025 (37 pages). The QBCC filed its closing submissions in Response on 15 July 2025 (39 pages). The builder then filed its closing submissions in Reply on 6 August 2025 (19 pages). [7] These are my Reasons in this matter. The Direction to Rectify [8] The QBCC issued a Direction to Rectify and/or Complete Work Number 0111112 on 8 August 2023. The Direction to Rectify related to three items of defective work as follows: 1 QBCC finds the licensee is responsible for internal corner of the walk-in robe which is not a level 4 finish per AS 2589-1 Gypsum Linings and deviates by more than 4mm in the vertical and is unsatisfactory. Pertains to item 2 of the complaint form. 2 QBCC finds the licensee is responsible for the margin between the architrave and bedroom 2 door and the hallway wall which exceeds tolerance and is unsatisfactory. This pertains to item 5 of the complaint form. 3 QBCC finds the licensee is responsible for the installation of the bedroom doors off the hallway whose clearances exceed 4 mm and are unsatisfactory. Pertains to item 21 of the complaint form. [9] On 24 May 2024 the Tribunal invited the Commission to reconsider its original Direction to Rectify. [10] On 15 July 2024 the Commission made a new decision not to issue a Direction to Rectify in respect of complaint items 2 and 21, and to issue a Direction to Rectify in respect of complaint item 5 only. [11] The only matter before the Tribunal in this application to review therefore is Item 2 of the original Direction to Rectify, which relates to Item 5 of the complaint form. -- 2 of 18 -- 3 History [12] The Owner entered into a domestic construction contract with the builder to construct a dwelling at the property on 4 November 2020.1 Work under the contract commenced around 29 January 2021.2 The work reached practical completion on 13 January 2022.3 [13] On 19 November 2022 the owners submitted an online complaint to the QBCC advising of a number of complaints, including the complaint which is the subject of this application. [14] Mr Colin Rendall, a QBCC inspector, conducted an inspection of the premises on 1 August 2023 and produced an Initial Inspection Report.4 His report provided as to complaint number 5 as follows: Description of defect as per complaint form – poor workmanship to architrave to hallway Location of defect – hallway Date claimant became aware of defect – 1/03/2022 On the day of the visual inspection, the claimant/representative directed the inspector to the item of complaint. The inspector found: 1. The margin between the bedroom 2 door and the wall on the hall side is out of alignment. 2. The variation in margin exceeds 4mm over 2 metres. 3. The defect can be seen from the normal viewing position. QBCC Reasoning: 1) QBCC standards and tolerance guide 10-8 for verticality states: 10.8 Verticality or plumbness of internal and external wall surfaces. Within the first 12 months from the completion of the work, all surfaces are defective if they deviate from vertical by more than 4mm within any 2m height. For tolerances and masonry refer to Table 4.4 in this Guide. Next action: Direction to Rectify QBCC decision: QBCC finds the licensee is responsible for the margin between the architrave to bedroom 2 door and the hallway wall which exceeds tolerance and is unsatisfactory. Pertains to item 5 of the complaint form. [15] There were varying descriptions made as to the location of the alleged defect throughout the history of this matter. A copy of the floor plan was filed as below:5 1 Domestic Construction Contract, QBCC Statement of Reasons (‘SOR’) p 39. 2 Ibid SOR [3.1], p 21. 3 Ibid SOR [3.9,] p 22. 4 Ibid SOR-25, p 423. 5 Ibid SOR-1, p 133. -- 3 of 18 -- 4 [16] The owner in the original complaint described the location as being in the ‘hallway’. [17] In his evidence at the hearing, Mr West, the Quality Assurance Assessor for the builder, who attended the inspection conducted by Mr Rendall, said that the Direction to Rectify which was given did not relate to the defect referred to by the owner in his complaint to the QBCC, but was only raised in the course of the inspection, as follows:6 Ms Hewish: But isn’t it correct to say that the owners identified that defect to Mr Rendall on the day of the inspection? Mr West: No Ms Hewish: They didn’t? Mr West: No, they – what happened was that he just would randomly point out something. So we went through the whole thing, we’re on our way out and he just randomly said ‘well, what about that’ and that was just brought up like that, so. Ms Hewish: So you weren’t going through it in order of…? Mr West: This wasn’t on the list. There is – on the list of defects that we went through, we completed all that and as we were leaving the owner just said ‘Well, what about that doorway?’. So it wasn’t on the list. We had no recollection or any evidence of that being an issue to him. He just brought it up at that particular time. We did a visual inspection and believe that there was no further action needed. I reported to management and they – they sorted it from there. Ms Hewish: So is your position that this item that we are discussing wasn’t on the complaint? 6 Transcript 1-22, Lines 5 to 48. -- 4 of 18 -- 5 Mr West: It was never on the complaint. Ms Hewish: But doesn’t it relate to complete item 5, with the defect being identified in the hallway and bedroom door 2? Mr West: Yeah, it was a completely different bedroom. So he – he previously complained about some gaps between the wall and the architraves, which were completed and fixed, but this was not on any of the – um, any evidence for us. Ms Hewish: So you disagree this was not – have you seen a copy of the complaint form? Mr West: Yep Ms Hewish: You’ve seen a copy of the complaint form – the – have you seen a copy of the complaint form that the owners submitted to QBCC? Mr West: Yes Ms Hewish: Yep Mr West: Yeah, I disagree, because it wasn’t – it wasn’t bedroom 2, yeah. [18] I clarified the identification of the location of the alleged defect with Mr West, who said that it related to bedroom 4, which was on the other side of the corridor, as follows:7 Member: Okay. All right. Now, which is the bedroom that you say the original complaint was about? Mr West: Bedroom 2 on the right-hand side. Member: Using the numbers on the plan? Mr West: So bedroom 2 listed on the plan here is on the – obviously looking at the – – Member: Bedroom 2. So that’s one of those three bedrooms that adjoin each other? Mr West: Correct. Member: Alright. Now which is the bedroom that you say Mr Rendall was referring to? Mr West: Bedroom 4 Member: … That the homeowner pointed out as you were leaving? Mr West: Bedroom 4. Member: Okay. So that’s basically opposite, on the other side of the corridor? Mr West: Correct 7 Ibid 1-23, Lines 29 to 45. -- 5 of 18 -- 6 [19] In his evidence at the hearing, Mr Rendall, the building inspector for the Commission, said that he relied on the bedroom number given by the owners, as follows:8 Mr Matthews: Now, just for clarification, in your statement you say – and I don’t – correct me if I’m wrong, but you say there’s been a suggestion by the builder that in fact the complaint was raised about bedroom 4, but bedroom 2 as identified in the plans, this door, was the subject of the complaint? Mr Rendall: No, I didn’t say that. Mr Matthews: No? Okay. What did you say? Mr Rendall: Alright. The homeowner identified the room as bedroom 2. Mr Matthews: Okay? Mr Rendall: Right? It’s their house; right? You might have a room – I’ve had houses where they’ve identified the room as a prayer room. On the plan it’s a totally different thing. They identified it as bedroom 2, right? My report identifies it as bedroom 2 because it corresponds with their complaint item as bedroom 2; right? The representative from the builder was there and did not challenge this; right? A request was made to the homeowner to get a set of plans at the beginning of this file, and they were never, ever issued to us; right? And as a matter of fact we received no plan from either party. Mr Matthews: Which – I mean, I’m not, again, I’m not trying to – I’m not trying to wed you in to either of these. I just want to know which door was – based on these photographs door/wall – door architrave and wall was the subject of the complaint during the inspection to which you issued the Direction to Rectify? Mr Rendall: Would be bedroom – the one that’s marked here as bedroom 2. Mr Matthews: Was that the one? Mr Rendall: That one, yes. Mr Matthews: Yep? Mr Rendall: Yes. Mr Matthews: So I just want to make sure? Mr Rendall: Yeah Mr Matthews: So the one on the next page it says bedroom 4. So the one – sorry, if you go back. So at page 495 there is one that is marked ‘bedroom 4’. And this is – you would have seen any email Mr Bartholomaeu’s…? Mr Rendall: Look, to be honest, I can’t – I can’t… Mr Matthews: You can’t recall? 8 Ibid 1-64, Lines 6 to 41. -- 6 of 18 -- 7 Mr Rendall: ...recall. No, I can’t recall because I’m not sure whether there was a door off that side or… Mr Matthews: Okay? Mr Rendall: … Or there wasn’t. [20] Mr Rendall went on to give evidence that he could not say conclusively whether it was the bedroom 2 door or the bedroom 4 door that was the subject of the complaint during the inspection and the Direction to Rectify, as follows:9 Mr Matthews: I’m not trying to… Now, I’m only trying to clarify which is which because all of my paperwork worked on the homeowner stating this is bedroom 2. Mr Rendall: Yes. Mr Matthews: The homeowner – I want to clarify and make sure I’ve got your evidence correct. You’re not precisely sure – you’re not sure which of these particular bedroom doors? Mr Rendall: No. Mr Matthews: … Was the subject of the inspection and the Direction to Rectify because it was – it might have been different to the plan, and you are relying on the homeowner’s definition of that during the inspection; is that fair to say? Mr Rendall: Yes. Yes. Mr Matthews: Okay. And looking at these photographs retrospectively you can’t say one way or the other whether it was bedroom 2 door or bedroom 4 door that was the subject of the complaint during the inspection and the Direction to Rectify? You can’t say one way or the other? Mr Rendall: I can’t say that conclusively, and I’m not going to get into that. Submissions of the builder [21] The builder submits that the decision to issue the Direction to Rectify ought to be set aside and summarised its position as follows:10 a) First and primarily, the Commission exceeded its statutory power or exercised it unfairly; b) Second, the work was not effective and there is no objective evidence before the tribunal that: i. the gap varied in width; or, ii. alternatively, if the gap did in fact vary in width (which Dixon denies), that the variation is actually defective for the purposes of any written code, standard or guideline (including section 10.8 of the Standards and Tolerances Guide – which does not apply to the gap) 9 Ibid 1-65, Line 46 to 1-66 Line 11. 10 Written argument of the applicant (Dixon), filed on 11 June 2025 -- 7 of 18 -- 8 c) third, the tribunal (stepping into the Commission’s position) should exercise its discretion not to issue the DTR (recognising Dixon’s innocent position) or it is unfair and all the circumstances to issue the DTR against Dixon because: i. the owners of the property replaced the hinges on the door at the architrave surrounds which (as explained below) may have caused the architrave to deviate from its original position; ii. Dixon (prior to inspection) arranged for its trade contractor to attend the property in order to address the alleged variation in the gap and the owners, however, failed to advise whether they were content with the trade contractor’s work (despite Dixon’s repeated requests); iii. the alleged issue relating to the gap was not raised by the owners until the day of the inspection such that Dixon was unable to attempt to rectify the issue before the DTR was issued; iv. the DTR was issued approximately 19 months after the work of the property was completed by Dixon; and, or in the alternative; and v. after Dixon notified Mr Rendall that it addressed the gap prior to the DTR, Mr Rendall failed to confirm with the owners whether such work was completed. [22] The builder submits that the decision was unfair as it was not given notice of the specific item of building work involved, or given sufficient time to attempt to rectify the issue, as follows:11 58. On a proper interpretation of the above-mentioned provisions, the Commission cannot direct a builder to rectify work that has not been the subject of a written complaint by an owner of a residential property. In the absence of such notice, a builder is not afforded the opportunity to rectify the allegedly defective work prior to the Commission considering whether a Direction to Rectify or to be issued and, as a matter of practicality, is not permitted to access that part of the consumer’s property that has not been referred to in a written complaint. This is a matter which goes squarely to the requirement to consider the unfairness to the builder in issuing a Direction to Rectify, and therefore a necessary fact to be considered as part of the proper exercise of the discretion. In the absence of a written complaint to the Commission (then being communicated to builder) about a specific item of building work and, or in the alternative, sufficient time being allowed following the identification of the disputed item during an investigation to allow the builder to attempt to rectify the issue, the unfairness ground would be engaged. 59. Therefore, as the alleged issue concerning the gap between the architrave surrounding the bedroom 4 door and the adjacent hallway wall was not included in the owners written complaint to the Commission, Dixon was not informed about this issue prior to the inspection and, as a result, was not afforded a proper opportunity to assess this issue and (if necessary) rectify the work before the DTR was issued, nor was the Commission entitled to access that part of the property unrelated to any complaint by the owner. Although Mr Rendall’s evidence is that item 5 of the owners 11 Written argument of the applicant (Dixon), filed on 11 June 2025, [58]–[59]. -- 8 of 18 -- 9 complaint form alluded to this issue by referring to ‘poor workmanship to architrave to hallway’, it is Dixon’s submission, (this based on Mr West’s evidence) that such a discretion contains insufficient information to refer to the gap between the bedroom 4 door and that this issue was raised for the first time by the owners on the day of the inspection. On the plan and photographs itself, is plainly ambiguous as to where the DTR was referring where there are numerous architraves to hallways outside of just bedroom 4. It follows that the DTR ought to be set aside on the basis that it was unfair to direct Dixon to rectify work that had not formed the basis of a written complaint from the owner and was only brought to its attention on the day of the inspection (this being 5 days before the DTR was issued). [23] As to whether the building work was defective, the builder submits that the tolerance specified in clause 10.8 of the Standards and Tolerances Guide does not apply to the gap, and that ‘there is no other relevant building code, rule, specification, standard or guideline pertaining to the gap and there is no evidence to suggest that the hallway wall and architrave (individually) do not comply with the tolerance outlined in clause 10.8 of the guide’.12 [24] The builder submits that as there is no provision in the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) which gives the Commission the power to direct a builder to rectify work that is not defective for the purposes of any relevant code, standard or tolerance, that the Direction to Rectify ought to be set aside as Mr Rendall’s findings are not supported by any relevant written rules governing residential building work in Queensland.13 [25] The builder does not contest that the work referred to in the Direction to Rectify is ‘building work’ within the meaning of the QBCC Act.14 [26] The builder submits that Mr Rendall’s position is that the alleged variation in the gap was visible from a normal viewing position, which (under section 1.4 of the defects guide) is 1.5 m from the relevant surface, and that because the variation in the gap exceeded 4 mm over 2 m, the ‘out of plumb building work’ did not comply with the tolerance set out in section 10.8 of the Guide and was therefore a non-structural defect.15 [27] The builder submits that the work is not defective, and that there is no evidence to suggest that a gap existed between the architrave to the bedroom 2 door and the hallway wall, or that if there was such a gap that this did not comply with the tolerance outlined in clause 10.8 of the Defects Guide.16 [28] The builder notes that Mr Rendall did not use any device to measure the gap, and simply relied on his observations, which was inadequate, as follows:17 90. In the absence of Mr Rendall using a level/other measuring device to physically measure the gap or providing photos which demonstrate the alleged variation in the gap, the method ultimately adopted (being to 12 Ibid [77]. 13 Ibid [79]. 14 Ibid [81]. 15 Ibid [87]. 16 Ibid [88]. 17 Ibid [90]. -- 9 of 18 -- 10 visually inspect the gap) is entirely inadequate to establish the existence of the variation. This is notable where Mr Rendall confirmed that he had various means of objectively measuring the variance, whether by electronic spirit level or by use of specific packers on a straight edge. It is possible that Mr Rendall has merely observed an optical illusion whereby the gap (at a normal viewing position) appears to vary in width from the top of the gap to the bottom (which is further from his eyeline). The existence of the optical illusion further exemplifies the need for Mr Rendall to have taken measurements of the gap or provide his own photos in order to properly determine the existence of the variation. However, there is no need to speculate as to what Mr Rendall did or did not observe where there is (as above) no objective evidence of any defect evident. [29] As to the bedroom door opening and closing by itself, as reported by the owner, the builder notes that there is no evidence provided by the Commission to prove that such an issue was present in the door between the date that the property was handed over to the owners, and the date on which the hinges on the bedroom doors were replaced by the owners; and that Mr Bartholomaeus stated that improper replacement hinges may cause a door to close without assistance.18 [30] The builder submits that clause 10.8 of the guide relates only to the issue of whether an individual wall is vertically plumb, and that there is no evidence before the tribunal that either the hallway and/or the architrave door (when considered individually) exceeded the tolerance in clause 10.8 of the guide.19 [31] The builder filed submissions in Reply to the closing submissions of the Commission. [32] It noted the submission of the Commission that the definition of ‘defective’ in the QBCC Act ‘does not require there to be a section in the guide or an Australian standard for every element of defective building work in order for poor workmanship to satisfy the definition of “defective”’; and submitted that this was incorrect as a matter of law as the QBCC Act does not afford an inspector ‘an unfettered discretion in determining whether a builder’s work is defective’.20 Submissions of the Commission [33] The Commission submits that the work was defective, and that it was not unfair to direct the builder to rectify the defective building work in all of the circumstances. [34] It notes that the QBCC Standards and Tolerances Guide (‘the Guide’) is referred to by Mr Rendall as providing guidance as to whether a complaint item is a defect; and that the Guide is a guide only, and where there is any difference or contradiction between the Guide and the QBCC Act, or any Act, Regulations, the National Construction Code, Australian Standards, or manufacturers installation requirements, they will take precedence over the Guide.21 [35] The Commission notes an email from ‘Dixon Homes Maintenance’ to Mr Rendall dated 3 August 2023, which was not referred to in the builder’s evidence, nor put to Mr Rendall in cross examination, which states: 18 Ibid [91]–[93]. 19 Ibid [100]. 20 Reply Submissions of the Applicant (Dixon), filed 6 August 2025, [3]. 21 Closing submissions of the first respondent, filed 15 July 2025, [2.12], [2.13]. -- 10 of 18 -- 11 ‘following on from the site inspection we have had the plasterer attend today and rectify the cornice in the bedroom 1 WIR. We have also had the carpenter finish the doors margins and architrave and bedroom 4 today also. I have requested the painter to now contact the owner to do paint touch-ups’.22 The Commission says that it brings it to the Tribunal’s attention due to the Commission’s obligations to assist.23 [36] The Commission addressed the issue raised by the builder of the work allegedly having been rectified between the inspection on 1 August 2023 and the Direction to Rectify being issued on 8 August 2023, and submits it was not unfair in the circumstances to give the Direction to Rectify to the applicant as follows:24 5.31 Notwithstanding that there is no clear evidence of if or when the building work the subject of complaint item 5 was allegedly rectified by the Applicant, the Commission’s position is that even if the work the subject of complaint item 5 was rectified between the inspection on 1 August 2023 and the DTR being issued on 8 August 2023, it is not unfair in the circumstances to give the Direction to Rectify to the applicant. 5.32 This is because the building work was defective and not rectified at the time of the inspection. This position is consistent with the objects of the QBCC act in ensuring the maintenance of proper standards in the industry and achieving a reasonable balance between the interests of building contractors and consumers. [37] The Commission submitted that in determining whether something is defective building work, Mr Rendall has regard to the standards of a reasonably competent licensee and good building practice generally, as well as specific guidelines.25 [38] In relation to the question as to the inspector not measuring the defect, the Commission referred to Mr Rendall’s expertise as follows:26 m) In response to Mr Bartholomeaus’ criticism that he did not measure the defect, it is Mr Rendall’s role to use his expertise to identify defects, which he did so by visually observing the clear defect from 1.5m away and observing that the door swung by itself, which based on Mr Rendall’s experience and expertise, Mr Rendall says is evidence that there is a problem with the plumbness. [39] The matters that Mr Rendall had regard to in considering whether the item was defective, were submitted by the Commission to be as follows:27 o) In considering whether Complaint Item 5 was defective, he had regard to: i. the noticeable difference in margin around the door; ii. the acceptable standards of a licensee; 22 Ibid [5.25]. 23 Ibid [5.28]. 24 Ibid [5.31], [5.32]. 25 Ibid [6.8j]. 26 Ibid [6.8m]. 27 Ibid [6.80]. -- 11 of 18 -- 12 iii. the position of the door which did not have a standard equilibrium, as it was out of plumb, meaning it would close by itself, or swing to the open position; iv. his testing of the door, by physically pushing it, which was observed by Mr West; and v. his observation at the inspection that the door would close by itself, which indicated to Mr Rendall that the jam was reasonable plumb, and that it was out of tolerance. [40] The Commission submitted that it accepted that a photograph would have assisted, as follows:28 6.28 With the benefit of hindsight, and the matters now agitated by the Applicant in the Tribunal, the Commission acknowledges that the tribunal would have been further assisted in determining whether Complaint Item 5 is defective, if a photograph had been taken by Mr Rendall of Complaint Item 5. [41] The commission described Mr Rendall’s conduct in not taking measurements and photos as ‘natural human behaviour’ as follows:29 6.30 In the above circumstances, the commission submits that the only criticism of Mr Rendall can be that: …. (b) Mr Rendall’s conduct was one of natural human behaviour, and his usual process is not to measure and photograph clear defects, unless contested by the builder’s representative (particularly in this case where there were 25 complaint items) [42] As to the changing of the hinges by the owners, the Commission submits that Mr Rendall’s evidence was that the defect was identified by the owners before the hinges were changed, and he did not agree that changing the hinges could make the architrave or doorjamb move;30 and that there was no other evidence before the tribunal other than the comments of Mr Rendall and Mr Bartholomaeus in respect of that issue.31 [43] The commission submitted that it was not necessary for a complaint to have been made in order for the commission to issue a Direction to Rectify, as follows: 8.8 Firstly, the applicant submits that the commission cannot direct a builder to rectify work that has not been the subject of a written complaint by an owner of a residential property. This is wrong at law because there is no limitation or pre-condition in the QBCC Act that this requires a complaint to be made in order for the commission to issue a DTR. This was confirmed in Shilleto v Queensland Building and Construction Commission [2024] QCAT 137 at paragraph 19 where Member Olding confirmed that ‘the power under s 72 to issue a DTR is not expressly limited to defects about which complaint has been lodged’. 28 Ibid [6.28]. 29 Ibid [6.30(b)]. 30 Ibid [7.10]. 31 Ibid [7.13]. -- 12 of 18 -- 13 8.9 There is nothing in the text of the statute or the purpose of the QBCC Act that supports the construction pressed by the applicant. A reading of the whole of section 72 makes it clear that the commission can issue a direction to a person where that person carried out what the commission considers to be defective building work. Legislation as to the issue of a Direction to Rectify [44] Section 72(3) of the QBCC Act provides that, in deciding whether to give a direction, it may take into consideration all the circumstances it considers are reasonably relevant; and s 72(5) provides that the Commission is not required to give a direction if the Commissioner is satisfied that in the circumstances it would be unfair to the person to give the direction, as follows: 72 Power to require rectification of building work and remediation of consequential damage (1) This section applies if the Commission is of the opinion that— (a) building work is defective or incomplete; or (b) consequential damage has been caused by, or as a consequence of, carrying out building work. (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) for consequential damage—remedy the damage. (2AA) A regulation may prescribe a period within which the Commission must make the direction. (2A) If a period is prescribed under subsection (2AA), the Commission must make the direction during the prescribed period. (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). (4) The period stated in the direction must be the period prescribed by regulation unless the Commission is satisfied that, if the direction is not required to be complied with within a shorter period— (a) a substantial loss will be incurred by, or a significant hazard will be caused to the health or safety of, a person because of the defective or incomplete building work or consequential damage; or (b) the defective or incomplete building work, or consequential damage, will cause a significant hazard to public safety or the environment generally. (5) The Commission is not required to give the direction if the Commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction. -- 13 of 18 -- 14 Example for subsection (5)— The Commission might decide not to give a direction for the rectification of building work because an owner refuses to allow a building contractor to return to the owner’s home or because an owner’s failure to properly maintain a home has exacerbated the extent of defective building work carried out on the home. (6) The Commission may, before it considers whether building work is defective or incomplete, require the consumer for the building work comply with a process established by the Commission to attempt to resolve the matter with the person who carried out the work. (7) In subsection (3), a reference to a contract for carrying out building work includes a reference to a domestic building contract for managing the carrying out of building work. (8) To remove any doubt, it is declared that the Commission may act under this section in relation to consequential damage whether or not an owner or occupier has made a request under section 71J. Discussion [45] This matter has been highly contested. There is only one Direction to Rectify involved, which relates to an alleged non-structural defect. No evidence was given as to the cost of works which would be required to rectify the defect, but the extent of the defect appears to be relatively minor, presumably requiring only minor carpentry, plastering and painting work to repair. [46] There are obviously broader issues of policy or principle between the parties at play behind the continuation and the contest of these proceedings. My role is simply to review the decision to issue a Direction to Rectify. [47] There is contest as to whether there was a defect, whether the Commission had power to give a Direction to Rectify in relation to the defect, and whether it was unfair to do so. [48] There is confusion as to what the initial complaint by the owner referred to, and whether the Direction to Rectify addressed a complaint made by the owner prior to the inspection. [49] The Direction to Rectify was made in relation to bedroom number 2 which is shown on the floor plan as being a bedroom sitting between the adjoining main bedroom and another adjoining bedroom. [50] The Direction to Rectify clearly appears to have been made in relation to another bedroom, which is described as bedroom 4 on the plan, which is opposite, and completely separate from, bedroom 2. [51] The builder submits that the first time its employees or officers were made aware of any defect in relation to the architrave of the door in bedroom 4 was at the time of the inspection, which led to the issuing of the Direction to Rectify. [52] Mr Rendall, the building inspector, related instances of owners misdescribing which room was being discussed. [53] The commission has submitted that it is not necessary for a complaint to have been made in order for the commission to issue a Direction to Rectify, and have cited the -- 14 of 18 -- 15 decision in Shilleto v Queensland Building and Construction Commission & Ors32 (‘Shilleto’) as authority for that proposition. [54] The decision in Shilleto considered the making of a complaint in terms of timing issues. The Member noted the rectification policy of the QBCC as follows: [14] Both submissions draw upon a Rectification of Building Work policy (‘the Rectification Policy’) made by the then QBCC Board on 11 April 2014 and approved under the then s 19 of the QBCC Act with effect from 14 October 2014. This Rectification Policy, which was continued by the QBCC Act, Schedule 1, s 76 and s 57 of the Queensland Building and Construction Commission Regulation 2018 (Qld), is subordinate legislation under sections 7 and 9 of the Statutory Instruments Act 1992 (Qld). [15] The Policy relevantly provides: (1) Rectification of defective building work 1. It is a policy of the Queensland Building and Construction Board that a building contractor who carries out defective building work should be required to rectify that work. 2. To remove any doubt, subsection (1) applies despite the building contractor failing to comply with the contracted plans and specifications for the work. (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. (Emphases added.) [55] The commission referred to paragraph [19] of the decision, which reads as follows: [17] It is not immediately clear that the Commission may issue a DTR relating to defects that have not been the subject of a complaint within 12 months of the consumer becoming aware of the alleged defect as required by s 71J(4). [18] On the one hand, the statutory scheme plainly contemplates consumers lodging complaints and the Commission responding with a decision 32 [2024] QCAT 137. -- 15 of 18 -- 16 whether or not to issue a DTR. That is scarcely surprising since the volume of building work undertaken in the State would make it unrealistic to envisage the Commission undertaking audits or otherwise becoming aware of defects outside of a complaints process in the usual course. And providing a time limit on complaints, and thus the prospect of a DTR issuing, could be seen as endeavouring to achieve a reasonable balance between the interests of building contractors and consumers in accordance with the objects of the QBCC Act (s 3, extracted above). [19] On the other hand, the power under s 72 to issue a DTR is not expressly limited to defects about which a complaint has been lodged. That, it might be thought, is consistent with the objects of the QBCC Act not being limited to protecting individual consumers but extending to ‘the maintenance of proper standards in the industry’: s 3(a)(i), extracted above. [56] As the Tribunal noted in [18] of that decision, the statutory scheme ‘plainly contemplates consumers lodging complaints’, and this is reinforced by the Rectification Policy which plainly states that ‘the consumer must lodge a formal complaint’. [57] Shilleto considered the impact of a complaint being made outside a 12 month period in question. It concluded that a complaint being lodged outside the 12 month period could still be considered, as a matter of discretion, as follows: [29] Accordingly, I approach this matter on the basis that the complaint being lodged outside the 12-month period is not fatal to the issue of a DTR but is a factor to be taken into account in deciding whether, as a matter of discretion, that should occur. [58] Shilleto therefore is not an authority for a broad proposition that it is irrelevant whether a consumer has made a complaint for the commission to issue a Direction to Rectify. [59] The statutory scheme and the commission’s procedures require a consumer to file a complaint. That provides for an orderly handling of complaints. [60] There may be instances where the commission in acting in accordance with the objects of the QBCC Act deals with defects of the type which were noted in Shilleto as ‘not being limited to protecting individual consumers but extending to “the maintenance of proper standards in the industry”’33 and could issue a Direction to Rectify without a complaint being lodged. That is a different situation to the handling of a consumer complaint by an individual consumer. [61] In dealing with a consumer complaint by an individual consumer, the consumer is required to make a complaint by the commission’s procedures, and it is a matter of procedural fairness that the builder should be given clear notice of a defect that it is being asked to address through the complaints process of the Commission before a direction adverse to the builder is given. [62] The issue here is not as to the numbering of the bedrooms – as Mr Rendall says, rooms can be misdescribed. However, the issue is as to whether, whatever description is used, that description is effective to alert the builder as to the complaint being made against it. 33 Shilleto [19]. -- 16 of 18 -- 17 [63] The builder contends that it advised the Commission that the defects to both bedroom 2 and bedroom 4 had been rectified and that the Commission did not follow up with a reinspection prior to the issuing of a Direction to Rectify. [64] I consider that the email from the builder to the Commission dated 3 August 2023 as to carpentry work being done in bedroom 4 on 3 August 2023, which the Commission referred to in its submissions, as noted, is not determinative in relation to the identification of the room concerned. [65] That email is entirely consistent with the builder’s contention that nothing in bedroom 4 was brought to their attention through the complaints process, and it indicates that the builder appears to have acted promptly and had further carpentry work conducted to that room after an issue was brought to their attention by the owner at the inspection. [66] The Commission contended that it was not unfair to issue a Direction to Rectify where ‘the building work was defective and not rectified at the time of the inspection’.34 This submission would suggest that the Commission could issue a Direction to Rectify immediately after an inspection, notwithstanding that the builder had not been given clear notice of the defect, or any opportunity being given to resolve the matter. [67] That submission of the Commission that a Direction to Rectify could fairly and properly be issued simply upon the building work being assessed as ‘defective and not rectified’ at the time of the inspection cannot be correct, as it does not address issues of fairness. [68] The builder has taken issue that the building inspector did not take any measurements by the use of instruments, but relied upon his knowledge and experience to observe the gap between the door and the architrave, and the verticality of the adjoining wall and door. [69] The builder also takes issue with the suggestion that a building inspector could be satisfied that work was defective in the absence of any specific Australian Standard, Code, guide or specification. [70] I accept that the expertise of a building inspector is an important element in the process of assessing whether work is defective, and that occasions may arise where there is no relevant Australian Standard, Code, guide or specification, or there is a ‘lacuna’ or gap in their provisions. This could conceivably readily happen in the case of new technology or new materials being utilised, or simply in an unusual situation that was not contemplated by the relevant specific Australian Standard, Code, or guide. [71] It is fundamental to the determination of many construction disputes, and to the review of decisions of the Commission, that regard be had to accepted industry practice as a measure of compliance, which often comes to an assessment of what is ‘reasonable’ based upon the standard of ‘a reasonably competent and diligent builder’. [72] In this matter the building inspector did not take any measurements or photos of the defect. Where the issue is one relating to an observable and measurable defect, such as the verticality of a wall, or the width of a gap, it would assist to take measurements, and take photos, and put beyond doubt any question as to whether a wall is vertical, or how wide a gap is. 34 Submissions of the Commission [5.32]. -- 17 of 18 -- 18 [73] In the absence of clarity as to the identification of the defect prior to the inspection, and as to the exact inclination of the wall and size of any alleged gap, I am left to assess the matter on the basis of the evidence and opinions of the witnesses. [74] Mr Rendall said that he could not say conclusively whether it was the bedroom 2 door or the bedroom 4 door that was the subject of the complaint during the inspection and the Direction to Rectify; and that he did not make any measurements or photographs as he was confident in his own experience as to what he was observing. [75] Mr West and Mr Bartholomeaus were particular in their recollections. I found their narratives to be logical and supported by their contemporary communications with the Commission. [76] I am not satisfied that a defect to bedroom 2, as identified in the complaint to the Commission, existed. Even if it is accepted that the complaint was intended to refer to bedroom 4, I am not satisfied that the existence of a defect as to bedroom 4 is established in the absence of any measurements or photographs substantiating a defect; and where there is a compounding and untested suggestion that the owners, by changing the hinges may have caused or contributed to the door closing by itself, rather than being caused by defective work by the builder. [77] Even if it is accepted that a defect was identified appropriately through the complaints process, and that a defect existed at the time of the inspection, I consider it was unfair to issue a Direction to Rectify where the builder had not been given clear notice of the defect, or an opportunity to rectify it prior to the inspection, or a reasonable opportunity to rectify after the inspection when the defect was discovered on inspection, before a Direction to Rectify was issued. [78] As I am not satisfied that a defect existed, or that it was fair to issue a Direction to Rectify, the decision of the Commission made on 15 July 2024 to issue a Direction to Rectify is set aside, and I order accordingly. -- 18 of 18 --