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

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dong v Queensland Building and Construction Commission [2025] QCATA 123 PARTIES: YAN QUI DONG (Applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (Respondent) APPLICATION NO/S: ORIGINATING APPLICATION NO: APL161-24 GAR444-23 MATTER TYPE: Appeals DELIVERED ON: 16 December 2025 HEARING DATE: 3 December 2025 HEARD AT: Brisbane DECISION OF: Judicial Member Forrest SC ORDERS: Appeal allowed. The matter is remitted to the Tribunal for a directions hearing on a date to be fixed to progress the review application. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW– where the applicant seeks a review of the Queensland Building and Construction Commission’s decision not to issue a direction to rectify – where the Queensland Building and Construction Commission is barred from issuing a direction to rectify after six years and six months from the date the building work is completed without an extension of time – where the review application was made after the six years and six months - where the applicant’s application for review was dismissed as misconceived and lacking in substance – where the Queensland Building and Construction Commission concede there was an error of law at first instance – where the Queensland Building and Construction Commission submits that the appeal is futile as it will not make an application to extend the time to make a direction to rectify – whether the appeal is futile Judicial Review Act 1991 (Qld) -- 1 of 7 -- 2 Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 72A(4), s 86(1)(e) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 47, s 142 Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission & Anor [2024] QCATA 109 McNab Constructions Australia P/L v Queensland Building Services Authority [2013] QSC 057 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: TW Ambrose, instructed by Queensland Building and Construction Commission REASONS FOR DECISION [1] The applicant, Ms Dong, has sought leave to appeal and, if leave is granted, appeals against the orders of a Senior Member made pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) to strike out her application to review a decision of the Queensland Building and Construction Commission (‘QBCC’) not to give a direction to rectify to a builder in respect of alleged defective building work at her property. Factual background to substantive dispute [2] The Senior Member made the following findings of fact that are not in dispute in this appeal:- (a) On 26 August 2015, ML Crosby & Co (a builder), and the previous owner of the applicant’s property entered into a contract for moving and restumping of a house on the property. The work was completed on or about 9 September 2016. (b) On 6 December 2020, the applicant purchased the property. (c) On 24 August 2022, the QBCC received a complaint from the applicant in relation to alleged defective building work at the property. (d) On 19 April 2023, an inspection was carried out by a QBCC building inspector. (e) On 21 April 2023, the QBCC gave a decision not to give a direction to rectify and that cover was not available under the statutory insurance scheme. (f) On 18 May 2023, the QBCC received an internal review application from the applicant seeking a review of the decision not to give a direction to rectify. (g) On 14 June 2023, the QBCC made the internal review decision not to give a direction to rectify on the basis that the statutory timeframe to give a direction to rectify had expired as provided for in s 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’). -- 2 of 7 -- 3 (h) On 3 July 2023, the applicant, Ms Dong, filed an application to review that decision. (i) On 10 November 2023, the QBCC filed an application seeking to dismiss the review proceedings pursuant to s 47 of the QCAT Act. [3] The application to dismiss the review application was heard on the papers on 29 April 2024 and the decision was handed down on 4 March 2024. Section 47 of the QCAT Act [4] The Senior Member cited s 47 of the QCAT Act as the source of her power to dismiss the proceedings. That section provides, relevantly: 47 Dismissing, striking out or deciding if unjustified proceeding or part (1) This section applies if the tribunal considers a proceeding or a part of a proceeding is— (a) frivolous, vexatious or misconceived; or (b) lacking in substance; or (c) otherwise an abuse of process. (2) The tribunal may— (a) if the party who brought the proceedings or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or … [5] The Senior Member dismissed the applicant’s entire review application because she was satisfied those proceedings were ‘misconceived and lacking in substance’ and would ‘ultimately fail’. The reasons the Senior Member gave for that were: (a) the time to give a direction to rectify to the contractor has passed, as more than six years and six months has passed since the work was completed and the internal review decision was made; (b) the Tribunal cannot extend the time to give a direction to rectify unless the QBCC makes an application to extend time; (c) the QBCC has not made an application to extend time; (d) the decision not to apply to extend time is not justiciable as part of the review proceeding; and (e) the Tribunal, for the reasons above, does not have jurisdiction to hear the review application, or alternatively, to decide that a direction to rectify should be issued. [6] The applicant, Ms Dong, filed an application for leave to appeal or appeal the decision of the Senior Member. That is opposed by the respondent, QBCC. For reasons not known to me, the matter has not been determined before now. [7] In October this year, the parties were given the opportunity to file any further written submissions in the appeal that they considered necessary in the light of the Appeal -- 3 of 7 -- 4 Tribunal’s decision in Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission & Anor [2024] QCATA 109 (‘Parkside’). [8] After considering that decision, the QBCC filed supplementary submissions conceding that the Senior Member who had dismissed Ms Dong’s review application had erred at law, but submitting that her decision to dismiss should nevertheless be upheld as the review application is futile in any event. [9] Having regard to the decision in Parkside, the QBCC’s concession appears to be an appropriate one. However, I do not accept that the appeal against the summary dismissal of Ms Dong’s review application should be dismissed on the grounds that the review application is futile in any event. My Reasons [10] Ms Dong wants the builder to be directed to rectify certain building work at her property. That is what she wanted with her initial complaint to the QBCC. [11] The QBCC is given the power to order rectification work by s 72 of the QBCC Act. That section provides, relevantly, 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 -- 4 of 7 -- 5 (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. 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. [12] That power is subject to further limitations contained in s 72A. 72A Powers and limitations of directions to rectify or remedy (1) A direction to rectify or remedy may be given to more than 1 person for the same building work. (2) A direction to rectify or remedy may require that a building, or part of a building, be demolished and building work be recommenced if, in order to rectify building work, it is necessary to do so. (3) If a direction to rectify or remedy is given to a person who is not currently licensed to carry out the required work, the person must have the work carried out by a licensed contractor. (4) A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly. (Emphasis added) …. [13] It is the limitation in s 72A(4) that is highly relevant in this matter. [14] It can be seen from the chronology of facts set out in [2] above that Ms Dong’s complaint was lodged with the QBCC within the period of six years and six months from the completion of the building work. However, the inspection did not take place until just after the six years and six months had expired. Consequently, QBCC;s decision not to issue a direction was also outside the statutory time period within which a direction to rectify can be given without first obtaining the leave of the Tribunal on an application brought by the QBCC pursuant to s 72A(4) of the QBCC Act. [15] The QBCC’s internal review decision not to issue a direction to rectify pursuant to s 72 of the QBCC Act was also founded on the fact that the period of six years and six months had already lapsed. [16] That decision was a decision reviewable by the Tribunal pursuant to s 86(1)(e) of the QBCC Act. Importantly and relevantly, a decision by the QBCC not to make an -- 5 of 7 -- 6 application to QCAT for an extension of the time as prescribed in s 72A(4) of the QBCC Act is not a decision reviewable by the Tribunal. [17] As already observed, the Senior Member when summarily dismissing Ms Dong’s application for review of the QBCC’s decision not to make a direction to rectify relied on the fact that the six years and six months had expired, and the QBCC had not applied for an extension of the time within which to make the direction and the decision not to do that was not a reviewable decision. Accordingly, the Senior Member thought, not unsurprisingly, that the review application was futile. [18] However, in Parkside, Senior Member Fitzpatrick, in a very detailed and carefully reasoned decision, relying on the authority of the Supreme Court of Queensland in McNab Constructions Australia P/L v Queensland Building Services Authority [2013] QSC 057, observed that the decision to give a direction to rectify or not to give a direction is not the same as the direction to rectify itself, the latter not being a decision at all. The Senior Member held that s 72A(4) is not a limit on the jurisdiction of the Tribunal to review a decision of the QBCC not to issue a direction to rectify. That section, Senior Member Fitzpatrick pointed out, simply prevents the QBCC from sending a direction to rectify after expiry of the period set out in s 72A(4) unless an extension of time is sought by the QBCC and granted by the Tribunal. I do not disagree. [19] Section 24 of the QCAT Act empowers the Tribunal, on hearing an application to review a decision not to issue a direction to rectify, to review the decision on its merits. The Tribunal may confirm or amend the decision, or set aside the decision and substitute its own decision, or set aside the decision and return the matter for reconsideration to the decision-maker, with directions the Tribunal considers appropriate. Pursuant to s 24(2)(b) of the QCAT Act, the Tribunal’s decision has effect, subject to any contrary order of the Tribunal, from when the reviewable decision takes or took effect. [20] In this case, the reviewable decision, not to issue a direction to rectify, took place outside the six years and six months period a direction to rectify can be made without an extension to that time period being granted by the Tribunal. Such an application would need to be initiated by QBCC by way of an originating application filed in the Tribunal. That is no doubt why the QBCC, which insists it will not make application to seek an extension of time in this case, submits the whole exercise of a review is futile and a waste of time and resources. [21] However, Senior Member Fitzpatrick observed in Parkside that a review of the decision not to give a direction to rectify, when seen to be a completely different matter from whether or not the actual direction can be given because it is outside time, may not be futile. The Senior Member pointed out that a review, appropriately conducted, on the merits, might determine that the original decision not to give a direction was wrong having regard to matters of fact and/or law and, in doing so, there might be matters revealed that would persuade the QBCC, properly exercising its discretion, that an application to extend the time within which to give a direction to rectify ought be made to the Tribunal. [22] I heard the submissions made on behalf of the QBCC that it is already of the view that no application for an extension of time will be sought in this matter, regardless of the outcome of any review that I determine should still take place. That was the basis of the submission that I should dismiss the appeal and leave the summary dismissal of -- 6 of 7 -- 7 Ms Dong’s review application in place. I was not persuaded by that submission. Notwithstanding the fact that a decision not to seek an extension of the time to issue a direction to rectify is not reviewable in this Tribunal, I am conscious of the fact, as was pointed out by Senior Member Fitzpatrick in Parkside, that the decision whether or not to seek an extension of the time is amenable to judicial review under the Judicial Review Act 1991 (Qld). Rigid policy application without allowing for exceptions and not considering the matter properly at the proper time could well excite such judicial intervention. [23] I am, however, satisfied that the Tribunal on review cannot make a binding order or direction that mandates the QBCC make an application for an extension of time even though the Tribunal on review can make recommendations pursuant to s 24(3) of the QCAT Act. That is, though, not a matter that is within the scope of my determination of this appeal in any event. What the member or senior member who hears the review application on its merits does with it is a matter for that member now. I merely reiterate that it would be a mistake to determine that it should not succeed simply because the time limit within which a direction to rectify can be given has expired. Some Submissions made by Ms Dong [24] Whilst Ms Dong’s actions in pressing the review application can be appreciated, I consider it appropriate to observe that it does her no credit to continue to press allegations that the QBCC deliberately delayed the timetabling of the inspection of her property so that it took place outside of the six years and six months period provided for in s 72A(4) of the QBCC Act, particularly where she is not able to point to or produce any credible evidence to support the allegations beyond mere assertion. Conclusion [25] For the above reasons, I do not accept that the summary dismissal was the correct decision as it was made by the Senior Member on a mistaken view of the law. Whilst ever there is a discretion for the QBCC to determine whether it applies to QCAT under s 72A(4) for an extension of time to give a direction to rectify, there is no futility in a review of the decision not to give a direction to rectify simply because the six years and six months period has expired when there are plainly issues of fact and law that need to be considered and determined on the merits. [26] The appeal is successful. I do not consider it a matter where leave to appeal was first necessary to be obtained as I consider a decision to summarily dismiss an entire review application is a final decision.1 [27] I shall return the matter to the Tribunal for a directions hearing which will now be necessary to progress the review application to its final determination. [28] I make the orders set out at the commencement of these written reasons. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), (3). -- 7 of 7 --