Dixonbuild Pty Ltd v Queensland Building and Construction Commission [2025] QCATA 78

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dixonbuild Pty Ltd v Queensland Building and Construction Commission [2025] QCATA 78 PARTIES: DIXONBUILD PTY LTD (applicant/appellant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: APL185-23 ORIGINATING APPLICATION NO/S: GAR136-21 MATTER TYPE: Appeals DELIVERED ON: 29 August 2025 HEARING DATE: 1 May 2025 HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: The application for leave to appeal, insofar as leave is required, is refused. The appeal is otherwise dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW AND FACT PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where tribunal confirmed decision to issue a direction to rectify in relation to a leaking shower – where multiple grounds of appeal alleging errors of mixed law and fact – whether leave to appeal should be given – if leave granted, whether appeal should be allowed – if appeal allowed, what orders should be made Queensland Building and Construction Commission Act 1991 (Qld), s 71J, s 72 -- 1 of 17 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 142, s 147 Bitossi v Queensland Building and Construction Commission [2021] QCAT 131 Harrison and Anor v Meehan [2016] QCATA 197 Stuart v Queensland Building and Construction Commission [2016] QCATA 135 Young t/as LK & HM Young v Queensland Building and Construction Commission [2021] QCAT 8 APPEARANCES & REPRESENTATION: Applicant: Mr CH Matthews, counsel, instructed by CDI Lawyers Pty Ltd Respondent: Ms AR Hewish, HWL Ebsworth REASONS FOR DECISION [1] This is an application for leave to appeal and, if granted, an appeal, of a decision confirming a decision of the Queensland Building and Construction Commission (‘QBCC’) to issue a direction to rectify to Dixonbuild Pty Ltd. [2] The Direction to Rectify was in the following terms: Water penetration is occurring from the main bathroom shower recess as the water membrane has failed to the base, resulting in water penetration to the adjacent bedroom wardrobe. - Pertains to item 1 on the QBCC complaint form. Leave to appeal [3] The decision is appealed on grounds that errors of fact and law were made in the decision. An appeal on a question of fact or a question of mixed law and fact may only be made with leave of the appeal tribunal.1 If leave is obtained, the appeal must be decided by way of rehearing.2 [4] The appeal tribunal in Harrison v Meehan3 set out the criteria to be applied in determining whether leave should be granted: The relevant principles to be applied in determining whether to grant leave to appeal are well established: Is there a reasonably arguable case of error in the primary decision; Is there a reasonable prospect that the applicant will obtain substantive relief; Is leave necessary to correct a substantial injustice to the applicant caused by some error; Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.4 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) , s 142(3)(b) (‘QCAT Act’). 2 QCAT Act, s 147(2). 3 [2016] QCATA 197. 4 Ibid, [8]. -- 2 of 17 -- 3 [5] The applicant submits that leave should be granted for the following reasons: (a) errors of fact and law were made in the decision; (b) it would be manifestly unfair and a breach of the applicant’s natural justice to allow a Direction to Rectify to remain on the applicant’s licence after the alleged defect was remedied and the test undertaken to determine the alleged defect was inappropriate; (c) to correct a substantial injustice to the applicant caused by the decision; and (d) if the decision is found to be wrong, substantial injustice would result if leave were refused. [6] The respondent submits that none of the grounds relied upon by the applicant demonstrate error and that the appeal should be dismissed. Other than referencing the principles to be applied in determining leave, the respondent did not specifically address whether leave should be granted. Background [7] The main ground of appeal relates to whether the Member erred in properly considering the unfairness in issuing the DTR to the builder. The factual context is relevant to this ground. For that reason, it is appropriate to set out a brief chronology of events: (a) On 11 September 2020 the Owner’s property agent (Amanda Onderstal of Sunshine Coast Real Estate Partners) emailed the Owner (Jon Meldon) a copy of a Routine Inspection Report. Her cover email said: Please see attached the latest routine report for your records Ensure you read the body of the report for any maintenance that may have been reported and needs to be address – NOTE – MAIN SHOWER LEAKING INTO BEDROOM WALL/ROBE – I have arranged a quote to repair this you may want to get onto your builder again – last time it was the bath tub being an issue into the other room. The attached report said, relevantly: The only issue on the day reported is the main shower is leaking into the robe in the back room – I have asked tenant to ensure they do not use this shower till it is fixed and to use the en suite shower….There were no other maintenance issues observed or reported on the day of the inspection. (b) Mr Meldon sent that email and report to Dixon the same day. (c) On 24 September 2020 Dixon maintenance undertook an inspection of the main bathroom shower at which time Dixon’s worker ‘pulled massive clump of hair + debris from waste’, re-siliconed the body of the tap and pressure tested the shower head. In relation to the shower base the report noted ‘filled base, water did not drop, but carpet was wet.’5 5 Appeal Book, 481. -- 3 of 17 -- 4 (d) On 28 September 2020 Mr Meldon lodged a written Complaint with the QBCC in these terms: Complaint Item List Location Description Date first noticed 1 En suite water leaking from ensuite shower through wall into walk in robe damaging carpet underlay, wall sheeting and house frame 11/09/2020 2 Bathroom water leaking from bath drain, possibly shower 11/09/2020 (e) On 29 September 2020 Dixon emailed the property agent to let her know Dixon Maintenance (Johnathan) attended and performed a shower leak test but was unable to find a leak and had advised ‘carpet in bedroom is only wet when shower is running and that best for a plumber to attend for further assistance’ to which Dixon replied ‘their maintenance department has already done’. (f) On 19 October 2020 the property manager emailed Dixon to follow up on the job and asked if ‘it has been fixed’? (g) On 20 October 2020 Dixon responded to the property manager saying: our plumber has made multiple attempts to arrange access with the Tenant but had no response. He has left voicemails, sent messages and even tried showing up to the house but no one was present. To have this resolved as soon as possible are you able to issue an entry notice and advise a date with 48 hours notice so we can book the plumber in? (h) On 23 October 2020 the plumbing contractor (JLF Plumbing Queensland Pty Ltd) attended the property to investigate the leak in the main bathroom shower recess. (i) On 27 October 2020 Mr Meldon emailed the property agent (copying in Dixon) as follows: Plumber attended last Friday, tests conducted and all clear. Tenant can use the shower but keep an eye out for any further issues. (j) On 19 November 2020 Dixon forwarded Mr Meldon’s email of 27 October 2020 to Dixon Maintenance. (k) On 19 November 2020 JLF Plumbing emailed Dixon Maintenance to report that on 23 October 2020 he put a new gauge on the shower outlet, conducted a hydrostatic test for 10 minutes with no pressure loss and that no leak in the plumbing had been found. He said that he then ‘ran the shower by itself to stimulate a normal operation and found no leak. The Dixon Maintenance person -- 4 of 17 -- 5 was there earlier, and he seemed to have fixed the issue. From our assessment, the plumbing is not the cause of the leak.’ (l) On 24 November 2020 Dixon emailed Mr Meldon saying she had tried calling him again that morning to discuss his QBCC Complaint and asked him to return her call as she has not had a response from him by phone or by email. (m) On 24 November 2020 Dixon emailed the property agent (copying in Matthew Buckner of QBCC and Mr Meldon) as follows: Thank you for your time on the phone today. As discussed, please confirm per your routine inspection dated 11/9/2020 there was no issue to be found with the en suite shower (per attached inspection report). Please also confirm that we have attended and completed repairs to the leaking main bathroom shower & have not heard from Tenant/real estate/owner of further issues (n) On 24 November 2020 the property agent emailed Dixon and says: As discussed I have another inspection coming up at the house on the 09/12/2020 – I will speak to the tenant and inspect the area that was effected by the leak on this day and report to you and advise if there is no further issues (o) Almost immediately, Dixon emailed the property agent back (copying in the QBCC and Mr Meldon) asking her to: Please confirm per my email that there was no issue with the ensuite shower, thanks (p) The property agent replied the same day (copying in the QBCC and Mr Meldon) and reports: There was no issue with the ensuite shower, it was the main shower recently and the bath tub leaking back in November 2019 (q) On 24 November 2020 Dixon emailed the QBCC (copying Mr Meldon) as follows: I have tried contacting the owner with no success, I have however spoken with the real estate who confirms the ensuite did not have any issues, I have also attached the real estate’s inspection report confirming this. I have also attached the owner’s email dated 27/10/2020 confirming the plumber also attended and tested the shower and advised the shower can now be used, we have not heard from the tenant/owner/real estate of any further issues. I have also attached the Plumbers report/confirmation email. Please also find attached a phot of hair & debris found in the main bathroom shower drain, this is part of homeowner/occupants maintenance and upkeep. Please confirm this matter can now be closed. (r) On 26 November 2020 the QBCC emailed Dixon: The matter cannot be closed before our full assessment of the case is completed. This includes my initial assessment (which has been completed) and the technical assessment by a building inspector. The building inspector may also decide to go to the property and inspect the complaint items. -- 5 of 17 -- 6 (s) On 9 December 2020 the property agent undertook an inspection of the property. (t) On 14 December 2020 the property agent emailed Dixon stating the inspection (on 9/12/2020) went well, and ‘leak seems to be fixed as no further reports from the tenant’. (u) On 14 January 2021 the QBCC sent Dixon a formal Notice that inspection of the work outlined in the attached complaint would be undertaken. The complaint was the complaint initially lodged by Mr Meldon (see above at [7](d)]. (v) On 23 January JDK plumber attended the property. (w) On 3 February 2021 Mr Hayes of the QBCC attended the property to inspect the items of Complaint. Mr Meldon first took Mr Hayes to the first item of complaint which, although referred to as the ensuite in the complaint form, was actually the shower recess in the main bathroom. Mr Hayes said the tenant confirmed they had been using the main bathroom shower since the trade contractor had attended the property. Mr Hayes did a hydrostatic test which showed water leaking to the adjoining bedroom. Mr Meldon recalled Mr Reynolds from Dixon calling someone on his mobile and saying – ‘we’ve got to fix this’. The second item of the complaint was identified by the QBCC as having been rectified. (x) On 4 February 2021 Mr Hayes produced his Initial Inspection Report which concluded that there was water penetration from the main bathroom shower recess to the adjacent bedroom wardrobe caused by a failure of the waterproof membrane to the base of the shower. (y) On 4 February 2021 the QBCC caused a Direction to Rectify to be issued to Dixon in respect of the main bathroom defect. Grounds of appeal [8] The applicant relies on the following grounds. I have taken into account the comprehensive submissions of both parties which have been of considerable assistance. I do not propose to set out those submissions in detail. Ground One: The Member erred in fact in paragraphs 67, 71 and 72 of the Reasons by concluding that it was not unfair to issue a DTR in the circumstances [9] In summary, Dixon submits that it is unfair to issue a DTR because: (a) On a proper interpretation of ss 71 J and 72 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), the QBCC cannot issue a DTR in respect of work that has not first been the subject of written complaint by an owner. If this were not the case, the builder would be denied an opportunity to rectify the allegedly defective work prior to the issue of a DTR. (b) The incorrect naming of the bathroom on the QBCC complaint form misled the applicant into believing there was no defect in the main bathroom shower until it was disavowed of this on the day of the QBCC’s inspection. The DTR was -- 6 of 17 -- 7 issued the next day which gave Dixon no time to rectify the issue prior to the issue of the DTR. (c) The tenants at the property did not complain further about leaks after the main bathroom shower waste was cleared and no water was allowed to pond. [10] The QBCC submits: (a) To the extent such a ‘finding’ was made by the Member they were supported by the evidence put before the Tribunal, including: (i) The evidence of Mr Meldon which was accepted by the Member; (ii) The failure by the applicant to call an employee, who was there at the relevant time, to give evidence that there was at any time any belief that any shower other than the main bathroom shower was involved in the leaking; (iii) The evidence of Mr Bartholomaeus that a representative of the applicant had attended the property around October 2020 and ‘removed hair and debris from the drain of the main bathroom shower’; (iv) The evidence that the applicant had been given previous opportunities to repair the defect before the DTR was issued and had instructed it’s employees or agents to remove tiles and re-waterproof the shower base; (b) The applicant had an opportunity to lead evidence from an employee who was present at the relevant inspection, but did not do so; (c) The applicant did not correct Mr Bartholomaeus’ evidence at hearing, and further Mr Bartholomaeus confirmed in cross-examination that the applicant was made aware that there was a leak in the main bathroom shower on about 11 September 2020;6 (d) It would be inappropriate for the Appeal Tribunal to have regard to these matters in circumstances where they were considered and determined by the Member when the decision was made, and the applicant did not lead any evidence to support its position. Consideration: Ground One [11] Section 71J(1) relevantly provides: A consumer may ask the commission to give a direction to rectify building work the consumer considers is defective or incomplete. [12] Section 72 relevantly provides: 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 6 Transcript of the Hearing, 1-10, [35]. -- 7 of 17 -- 8 (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. … (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. (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 . [13] Section 72 falls within Part 6 of the QBCC Act. Part 6 deals with rectification of building work. One of the objects of the QBCC Act is ‘to provide remedies for defective building work’.7 Part 6 seeks to achieve this object by various means including, for example, dispute resolution8 and the power to require rectification of the building work.9 In seeking to achieve the object of providing remedies for defective building work the purpose of Part 6 is consumer protection.10 [14] The power to give a direction to rectify is contained in s 72(2). The QBCC has a discretion whether to give such a direction. Section 72(3) provides that in deciding whether to give a direction the Commission may take into consideration all the circumstances it considers are reasonably relevant. Section 72(5) provides that a direction is not required to be given if the Commission, is satisfied that, in the circumstances, it would be unfair to give the direction. Limitations on the power to give a direction are contained in s 72A. 7 QBCC Act, s 3(b). 8 QBCC Act, s 72(6). 9 QBCC Act, s 72. 10 Barry v Queensland Building and Construction Commission [2015] QSC 50, [16] citing Lange v Queensland Building Services Authority [2012] 2 Qd R 457, [30]. -- 8 of 17 -- 9 [15] The applicant contends that, on a proper interpretation of s 71J and s 72, the Commission cannot direct a builder to rectify work that has not been the subject of a written complaint by an owner of residential property.11 I do not accept that contention. The exercise of the discretion to issue a direction is conditioned only on the Commission forming the opinion that the work is defective or incomplete.12 The option for a consumer to request a direction be given, is not a condition to the exercise of the power in s 72.13 [16] In arriving at that conclusion, I did not find the respondent’s reliance on Queensland Building and Construction Commission v Groupline Constructions Pty Ltd14 at [79] helpful. There, it was held, relying on s 72(8), that a direction to remedy consequential damage (not to rectify defective work) may be given whether a request had been given. Section 72(8) makes it clear that a request is not needed before a direction to remedy consequential damage can be issued. It says nothing about directions to rectify defective work. [17] In saying that, I accept that in some circumstances the absence of a complaint or a delay in making a complaint may be relevant to the issue of fairness.15 In this matter, however, the applicant was aware from at least 11 September 2020 that the main bathroom shower was leaking. This was confirmed in cross examination of Mr Bartholomaeus, Managing Director of Dixonbuild Pty Ltd, in the hearing below.16 The applicant had ample opportunity between 11 September 2020 and 4 February 2021 (when the direction was given) to rectify the leak. [18] Further, the learned Member at first instance made specific reference to the fact that no evidence had been led to the effect that Dixon was at any time confused by the naming of the wrong bathroom on the complaint form.17 I find no error of fact was made in this respect. The real confusion surrounded whether that leak had been rectified. It was the responsibility of the applicant to ascertain that the defect identified in the main bathroom had been satisfactorily rectified. It cannot claim ‘unfairness’ because it assumed, wrongly as it turned out, that the leak had been fixed. [19] For completeness, I add that I do not accept that the applicant was ‘never given permission to attend to this aspect of the building’ (meaning the main bathroom). This submission is inconsistent with the evidence adduced at the Hearing to the effect that Dixon attended the property to test and try to fix the leak in the main bathroom on 23 October 2020. [20] The applicant also submits that the power to issue a direction to rectify does not give the QBCC inspector an unfettered discretion to determine that building work is defective, in particular, as a matter of law, that it is unfair to issue a DTR where there 11 Amended Appeal Submissions filed on 30 April 2025, [35]. 12 Barry v Queensland Building and Construction Commission [2015] QSC 50. 13 Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480, [22] citing Urban Homes Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 131, [37]-[40]. 14 [2020] QCA 245. 15 Christiansen & Anor v Queensland Building and Construction Commission [2020] QCAT 57; Rosecove Pty Ltd v Queensland Building and Construction Commission (costs) [2024] QCAT 520, [49]. 16 Transcript 1-10, at 35. 17 Reasons, [66]. -- 9 of 17 -- 10 are no building codes, standards, tolerances or guidelines which support a conclusion that the relevant work was defective. [21] The applicant argues the test conducted by the QBCC inspector which involved ‘ponding’ water was inconsistent with the QBCC Standards and Tolerances Guide (section 14.3) which only deemed a shower to be defective if it leaked under ‘normal usage’ (which did not include ponding water in the shower) and with the relevant Australian Standard (AS3740-2020) which requires water to flow to the waste with appropriate falls without leaving any standing water (except normal water tension). [22] I do not accept that the Member erred in accepting the evidence of the QBCC inspector as to the testing he conducted and what it revealed. The learned Member referred to another tribunal decision where the use of a hydrostatic test had been accepted and said: I accept the evidence of Mr Hayes that the test which he conducted was an industry standard, and appropriate, test. I also accept the opinion of Mr Hayes that a shower has to be waterproof, and that if it is not, it is a defect. I consider that the expression ‘in normal usage’ in the QBCC tolerances guide apprehends the use of a shower for its normal purpose of a person using the shower for personal hygiene, and the need for a shower to be waterproof whilst doing so it logical and unsurprising.18 [23] The Member also accepted the evidence of Mr Hayes as to how he conducted the test, in particular, that the height of the water ponded for the purposes of the test was not above the height of the waterproof membrane. [24] There is no error by the Member in proceeding on this basis in circumstances where, as the respondent submitted: (a) the applicant did not adduce evidence from any of its employees or agents who had actual knowledge of the inspection conducted and who had attended the property; (b) Mr Hayes gave evidence, which was accepted, that the hydrostatic test was an industry standard test that he, as an experienced building inspector, had been using for a long time; (c) the applicant had not identified any specific test in any Australian Standard that should have been applied or as to why the test conducted breached any Australian Standard and did not adduce evidence to show that the testing methodology applied by Mr Hayes was not reasonable; (d) the evidence of Mr Hayes was accepted being that ‘the test which he conducted was appropriate, and that it showed a leak issuing from the main bathroom shower into the adjoining wardrobe, which would properly be classified as a major defect’;19 (e) The applicant led no evidence to establish that ‘normal usage’ within the meaning of s 14.3 of the Standards and Tolerances Guide, did not include water 18 Reasons, [59]-[61]. 19 Reasons, [68]. -- 10 of 17 -- 11 ponding in the shower. The evidence of Mr Hayes, which was confirmed in cross-examination and not contested, was that ‘normal usage’ includes water ponding because a shower should be able to hold water. [25] In conclusion, there was no error in the construction of s 72. The learned Member has not erred in his approach to the issue of unfairness in giving the direction and has not erred in finding the relevant building work was defective on the evidence before him. [26] In my view, this ground is not made out. Ground Two: The Member erred in law at paragraph 59 of the Reasons in accepting the evidence of Mr Hayes that the test he conducted was an industry standard, and appropriate test. [27] The applicant and respondent’s submissions are similar to those in respect of ground one. [28] Mr Hayes, the QBCC building inspector attended the property on 3 February 2021 and conducted testing of the main bathroom shower. It is Mr Hayes’ method of testing that forms the basis of grounds two and three. [29] In short, Mr Hayes’ method involved ‘ponding’ the shower recess to see whether the water level receded. Mr Hayes did this by filling a plastic bag with water which is then placed over the top of the drain to seal the waste. [30] The applicant submits that the Member erred in law in concluding that the test conducted by Mr Hayes was an industry standard test and appropriate test.20 [31] The applicant refers to section 14.3 of the QBCC Standards and Tolerances Guide (the QBCC Guide). Section 14.3 of the QBCC Standards and Tolerances Guide (‘the Guide’) provides: 14.3 Shower recess and components Any shower component that allows a fully enclosed shower recess to leak during normal usage is defective. Within the first 12 months from completion of the work, shower recess and components are defective if they crack or don’t perform as intended and cracks in shower bases, screens and glass are defects if they are visible from normal viewing position. [32] The applicant contends that ‘normal usage’ contemplates the disbursement of water in a non-concentrated manner with the majority of that water not pooling but rather draining away through the waste fairly instantly. Accordingly, a test that permits water to pond ‘cannot be said to compliment standard industry practice’. [33] It is not in dispute that there is no particular test for shower waterproofing prescribed in any Standard or in the QBCC Guide. [34] In my view, it is not clear that ‘shower component’ in s 14.3 includes the waterproofing membrane. Assuming for the purposes of the appeal that it does, the learned Member accepted the evidence of Mr Hayes that ‘normal usage’ included 20 Reasons, [59]. -- 11 of 17 -- 12 water ponding because a shower should be able to hold water.21 No evidence was led by the applicant as to what ‘normal usage’ means in the context of s 14.3 of the Guide. [35] The learned Member also accepted the evidence of Mr Hayes that the main bathroom shower did not comply with the Building Code of Australia because water penetration was occurring from the main bathroom shower to the adjacent bedroom. [36] Finally, the learned Member accepted that the hydrostatic test conducted by Mr Hayes was appropriately conducted, in circumstances where Mr Reynolds, the applicant’s representative, was present during the testing, did not question the method of testing or the height of the ponded water, and did not take any measurements of the water level.22 [37] This ground is not made out. Ground Three: The Member erred in law at paragraph 59 of the Reasons by accepting the evidence of Mr Hayes that the test was an industry standard test, and appropriate test because the test failed to adhere with AS3740 [38] The applicant submits that the test which involves ponding water in the shower, is not in accordance with AS3740 which does not contemplate water being retained in the recess of a shower for any given period because it requires falls in shower floors to be sufficient to prevent ‘surface water from being retained on the shower floor (except for residual water remaining due to surface tension)…’.23 The applicant submits, that because the tribunal, in exercising its discretion to issue a DTR, will consider the QBCC Defects policy, QBCC Standards and Tolerances Guide and relevant prescribed Standards, the main bathroom shower could not be said to be defective. [39] Further, the applicant says the Member’s reliance on Young t/as LK & HM Young v Queensland Building and Construction Commission24 in support of the proposition that the hydrostatic test (ie the ‘ponding method’) was accepted as an approved methodology was incorrect where no issue was raised in the decision as to the manner in which the hydrostatic test was conducted. [40] The respondent submits no findings of law were made by the Member at [59] but rather that the Member simply accepted the evidence of Mr Hayes that the test he conducted was an industry standard and appropriate test and that the applicant by ground three is merely trying to reargue its case which remains unsupported on the evidence led by the applicant. [41] I accept the respondent’s submissions. There is no error law at paragraph 59. The Member preferred the evidence of Mr Hayes and accepted that the test he used involving ponding of water is a standard industry practice. The Member also accepted the opinion of Mr Hayes that a shower has to be waterproof and that if it is not, it is defective.25 This finding was made in circumstances where the applicant did not lead any evidence from any other person who was present at the time Mr Hayes conducted the test. Mr Uppman, who gave evidence for the applicant, took issue with the test conducted by Mr Hayes however, as the learned Member said, he did not personally 21 Transcript, 66, [10]. 22 Statement of Danny Hayes dated 10 November 2021, [38]. 23 Applicant’s written submissions dated 30 September 2022,[48], referring to AS3740-2010, s 3.4. 24 [2021] QCAT 8. 25 Reasons, [60]. -- 12 of 17 -- 13 view the work at any time, and was not available to be cross-examined and, consequently, that his evidence would be given no weight.26 Further, the Member did not accept the evidence of Mr Bartholomaeus regarding ‘the validity of the recreation and assumption’ as to the depth of ponded water used in the test, noting again that he was not present when the test was undertaken.27 [42] Further, there is no error, in my view, in relying on the decision in Young. The evidence given by Mr Hayes was to the effect that he did monitor the water level and, in any event, that the ponded water did not exceed the height of the membrane. [43] This ground is not made out. Ground Four: The Member erred in fact in paragraph 66 of the Reasons by stating there was no evidence that any party was confused by the misnaming of the shower on the QBCC complaint form. [44] The applicant submits that the learned Member was wrong when he concluded at [66] that there was no evidence that any party was at any time confused by the misnaming of the correct shower on the complaint form. [45] The applicant says this was an error because the correspondence of 24 November 2020 between Dixon and the Mr Meldon shows Dixon was misled into believing there was no defect in the main bathroom shower. The correspondence from Dixon asked Mr Meldon to confirm there was no issue with the ensuite shower and that the main bathroom had been rectified. Mr Meldon replied to say there was no issue with the ensuite shower, the main shower had an issue recently and the bathtub was leaking back in November 2019. [46] The applicant submits that because the owner failed to identify any alleged defect regarding the main bathroom shower, the applicant could not have been aware of any alleged defect regarding the main bathroom shower. The applicant says this caused confusion to the applicant by misleading it to believe that the items the subject of the owners’ complaint had been rectified. On this basis, the applicant submits, the Member erred in fact, by finding the Owner’s QBCC complaint did not cause the applicant confusion. [47] Although it is accepted an error was made on the complaint form, I do not accept the Member erred in saying there was no evidence any party was at any time confused by the error. In my view this was a reasonable conclusion on the evidence. Although Dixon had been out to attempt to fix a leak in the main bathroom shower prior to the owner lodging his complaint form (which only mentioned the ensuite) it was made clear to Dixon that there was no issue with the ensuite and that the problem lay with the main bathroom shower. [48] I accept that the error on the complaint form led Dixon to seek clarification a number of times that there was no issue with the ensuite. But at the same time, it was aware there was an issue with the main bathroom and had sent a plumber out to fix the issue. After the complaint form was lodged, Dixon had communications with the Owner and property agent about the main bathroom shower. Dixon knew there was an issue with it and thought, rightly or wrongly, the issue had been rectified. 26 Reasons at [57]. 27 Reasons at [49]. -- 13 of 17 -- 14 [49] In any event, even if I accept that Dixon was confused by the complaint form, the confusion only meant that Dixon asked about the ensuite as well as the main bathroom. The confusion did not mean that Dixon was denied the opportunity of rectifying the issue with the main bathroom shower. [50] I do not accept that Dixon believed the inspector and the QBCC were limited to inspecting only the ensuite shower because that was the shower referred to in the complaint form. [51] The inspector was taken to the main bathroom shower and Dixon’s representative and the property agent were with him. No one expressed any confusion about what was being inspected or why. Further, the position reached by the Member was supported by the evidence put before the Tribunal during the course of the hearing and it would be inappropriate for the Appeal Tribunal to have regard to those matters in circumstances where they were considered and determined by the learned Member when the decision was made and where the applicant did not lead any evidence to support its position. [52] The Member has not erred in fact in making the statement at paragraph 66 of the Reasons. [53] Leave in relation to this ground is refused. Ground Five: The Member erred in fact by finding that the main bathroom shower was defective [54] The applicant submits that the Member erred in finding the main bathroom shower was defective by way of leakage essentially because the owner’s photos of a wall containing a water ingress could not be identified as any specific wall in the house and that the photos contradicted Mr Hayes’ testing which indicated a leak from the floor in the main bathroom and not any wall. [55] The respondent submits that the applicant does not point to any paragraph in the Reasons to support the assertion that the Member erred. Further, that the Member’s finding that the shower was defective was based on the unchallenged evidence of Mr Hayes that the test he conducted showed a leak issuing from the main bathroom shower into the adjoining wardrobe. [56] The basis for this ground is not clear. The Member made clear he relied on the evidence of Mr Hayes. That there may have been photos in existence which were inconsistent with that evidence does not mean the Member has erred. [57] There has been no error of fact in finding the main bathroom shower was defective. [58] Leave to appeal on this ground is refused. Ground Six: The applicant was not provided with the opportunity to resolve the matter informally before the DTR was issued [59] The applicant submits by ground six that the DTR was issued ‘against the principles of procedural fairness’ on the basis they were not given an opportunity to rectify the defective work. The applicant then refers to s 28(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) which provides that in conducting a proceeding, the tribunal must observe the rules of natural justice. -- 14 of 17 -- 15 [60] The respondent submits that, notwithstanding the applicant has not articulated a basis for ground six, that the Member found the builder had ample opportunity to remedy the defect in the main bathroom shower. Further, that the QBCC Act does not require that a builder be given an opportunity to resolve a matter informally before a DTR is issued. [61] Section 28(3) refers to the Tribunal’s obligation to afford natural justice, not to the obligation of a party to the review proceeding. In any event, as the respondent has outlined, the Member found on the evidence that the applicant was given an opportunity to rectify the defective main bathroom shower. Further, as I have said above, there is no statutory obligation on the part of the QBCC to afford a builder an informal opportunity to rectify a defect prior to issuing a DTR. [62] Ground six is not made out. Ground Seven: The Member erred in fact by the contradictions between paragraphs 6 and 54 of the Reasons [63] The applicant points to inconsistencies in the Member’s Reasons (between [6] and [54]) as to whether the shower was in use between September 2020 and February 2021. The applicant says that if the shower was used this would support its position that it would be unfair to issue a DTR because there would be a possibility of intervening acts that could have contributed to the Owner’s Complaint. [64] The respondent disputes there is any inconsistency in the identified paragraphs of the Member’s Reasons and that the ground is merely an attempt by the applicant to reargue its case. [65] No evidence was led at the Hearing to the effect that the use of the shower contributed to the leakage and, as a consequence, that it would be unfair to issue a DTR. [66] Leave to appeal on this ground is refused. Ground Eight: The Member failed to recognise the possibility that the leak identified by Mr Hayes was caused by some other factor unrelated to the work carried out by the applicant [67] The applicant submits that the Member failed to recognise the possibility that the leak was caused by some other factor unrelated to any work carried out by the applicant. [68] This ground is similar to ground seven. [69] Ground eight is also an attempt by the applicant to reargue its case. The applicant led no evidence to support its argument that other causes, such as a plumbing leak, the shower rose blowing out or the shower base overfilling, was a cause of the leaking. [70] It was open for the applicant to adduce such evidence at the hearing at first instance. That the opportunity was not taken is no ground for appeal. [71] This ground is not made out. Ground Nine: Mr Rodney Uppman’s evidence and statement must have been given the appropriate weight and considered [72] The applicant submits that Mr Uppman’s evidence and statement should have been given the appropriate weight and considered. In support the applicant relies on [40] of the Reasons where the Member re-states the respondent’s submission, in effect that -- 15 of 17 -- 16 the statement was ‘speculative’ and that an expert should be made available, but made no finding in relation to the submission. [73] The applicant submits that Mr Uppman provided a statement in his capacity as installer of the waterproofing membrane and, accordingly, that the authority relied upon by the respondent in support of the proposition that an expert should be available,28 is distinguishable. [74] The respondent submits that the applicant has not stated whether there has been an error of fact or law and, accordingly, that the ground is baseless and cannot be properly responded to by the respondent. Notwithstanding the applicant did not identify the alleged error, the respondent refers to [57] of the Reasons where the Member states: Mr Upmann took issue with the type of test conducted by Mr Hayes, saying that it was not an accepted test, however Mr Upmann did not personally view the work at any time, and was not available to be cross-examined. I do not place any weight upon his evidence. [75] The respondent submits that the finding made by the Member was based on Mr Uppman not being present at the inspection and that this is not disputed. [76] Whether or not Mr Upmann was an expert, he gave a statement in the proceeding and the Member made no error in giving it no weight on the basis he was not available to be cross-examined. It is not clear, in my view, whether the Member was referring to Mr Upmann not having ever viewed the work the subject of the DTR or instead was referring to him not being present at the time of the inspection and testing. In any event, he was not present at the time of the testing and the Member would have been justified in giving his evidence about the ponding testing undertaken, limited weight. [77] This ground is not made out. Ground Ten: The respondent relied upon case law not provided to the applicant before the hearing [78] The applicant submits by ground ten that the applicant was not afforded natural justice in being taken by surprise by cases relied upon by the respondent in the hearing at first instance. [79] The applicant has not identified the relevant case law or explained what prejudice was allegedly caused by the applicant. It is not sufficient to point to a denial of natural justice without also demonstrating the prejudice which flows from such denial.29 In any event, the applicant was legally represented, did not object to the case law being raised at the time, and, if there were concerns, leave could have been sought to file submissions responding to the case law to the extent that was considered necessary. [80] There is no substance to ground ten. Conclusion [81] The applicant has not established any arguable error on the part of the Member. [82] What seemed to be permeating much of the applicant’s application for leave, was the notion that there was a disconnect between the Complaint which referred to the ensuite 28 Bitossi v Queensland Building and Construction Commission [2021] QCAT 131, [15]. 29 Stuart v Queensland Building and Construction Commission [2016] QCATA 135, [46]. -- 16 of 17 -- 17 bathroom, and the DTR which related to the main bathroom shower. There was no demonstrable prejudice caused to the applicant by this and the evidence relied upon by the Member showed this to be the case. The fact the applicant has issues with the ‘ponding’ method of testing is not a matter for appeal unless the Member has erred in basing reliance on that testing. The applicant has not demonstrated this to be the case. [83] Insofar as the applicant purports to argue that the Member did not consider other possible causes of the leakage, that is also a matter that should have been raised at first instance and relevant evidence adduced. It is simply too late to seek to reargue the matter now. [84] The application for leave to appeal insofar as leave is required, is refused. [85] The appeal is otherwise dismissed. -- 17 of 17 --