Agius v Queensland Building and Construction Commission & Anor [2023] QCATA 148

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Agius v Queensland Building and Construction Commission & Anor [2023] QCATA 148 PARTIES: MARK ELLIOTT AGIUS (applicant/appellant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent) GEDOUN CONSTRUCTIONS PTY LTD (second respondent) APPLICATION NO/S: APL244-21 ORIGINATING APPLICATION NO/S: GAR140-21 MATTER TYPE: Appeals DELIVERED ON: 2 November 2023 HEARING DATE: 11 May 2023 HEARD AT: Brisbane DECISION OF: Acting Senior Member Fitzpatrick ORDERS: 1. Leave to appeal is granted. 2. The decision of the Tribunal of 4 August 2021 is set aside, and the following order is made in substitution. 3. The preliminary issue is not suitable for determination so that the preliminary issue proceeding is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – Where a preliminary issue as to whether work was “building work” in whole or in part was determined - Whether there is a reasonably arguable case of error on the part of the Tribunal below - Whether the determination of the preliminary issue in the Tribunal below should stand Queensland Building and Construction Commission Act 1991 (Qld) s 72, sch 2 Queensland Building and Construction Commission Regulation 2018 (Qld) s 5(2), sch 1 -- 1 of 10 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 142(3), 146, 147 Byrne v People Resourcing (Qld) Pty Ltd & Ors [2014] QSC 039 Gedoun Constructions Pty Ltd v Agius [2022] QCAT 446 Glen Williams Pty Ltd v Queensland Building Service Authority [2012] QAT 127 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty LTd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Pickering v McArthur [20005] QCA 294 Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 Rintoul v State of Queensland & Ors [2018] QCA 20 APPEARANCES & REPRESENTATION: Applicant: A Tindall, instructed by Australian Law Partners. First Respondent: SE Seefeld, instructed by Norton Rose Fullbright. REASONS FOR DECISION [1] This matter is one of a number of matters involving the parties, arising out of the construction of a house for the applicant Mr Agius, by the builder Gedoun Constructions Pty Ltd. In tandem with these proceedings Mr Agius has sought a remedy against the builder for breach of statutory warranties, which has been determined by the Tribunal in his favour.1 That decision was made after the decision below, the subject of this application for leave to appeal or appeal. The building dispute decision is the subject of an appeal, which to date has not yet been determined. Although of some relevance to this appeal, I have not taken into account the findings in the proceeding against the builder, because the task for me is not to determine the correct and preferable decision in the review application. The issue for me is whether the determination of a preliminary point in the Tribunal below should stand. [2] Mr Agius applied to review a decision of the Queensland Building and Construction Commission (QBCC) made on 30 March 2020. [3] Relevant to this appeal is the decision not to issue a direction to rectify or remedy for Complaint item 1 made 24 December 2019. Complaint 1 is that – “Builder incorrectly designed and built house to wrong Wind Classification, downgrading from C3 to C2, then attempted to downgrade further to C1 via an erroneous Form 15 in an attempt to avoid attending to defective works.” [4] A second Complaint in relation to an energy efficient certificate is not part of this appeal proceeding. 1 Gedoun Constructions Pty Ltd v Agius [2022] QCAT 446. -- 2 of 10 -- 3 The QBCC decision dated 30 March 2020 [5] The QBCC in its reasons for decision said that it must first be determined whether there is “building work” and only then consider if it is “defective” and if so whether it is fair to issue a direction to rectify. [6] The QBCC said that building work is defined in Schedule 2 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) to include the erection or construction of a building. However, the definition of building work is limited by specific work listed under Schedule 1 of the QBCC Regulation, including work performed by engineers and architects. [7] Despite setting out the order of its required decision making, the QBCC went first to the question of whether building work was defective. It concluded that because the builder performed works in line with the council decision notice and approved plans with a Wind Classification of C2, the building work undertaken by the builder, being the erection and construction of the dwelling is not defective. [8] The QBCC then noted that the structural drawings were by Northern Consulting Engineers (NCE) job no: GED890 as was the Wind Classification Report and Form 15. [9] The QBCC referred to Mr Agius’ argument that design and specification work, being in relation to the construction of a residential house, falls within the definition of building work as defined under Schedule 2 of the QBCC Act. The QBCC then referred to the whole definition which says that building work does not include work of a kind excluded by regulation from the ambit of this definition. The QBCC noted that work performed by engineers, including design and specification work, is a specific exclusion under the QBCC Regulation and therefore cannot be included within the definition of building work. [10] As a result, it was concluded that the QBCC could not give a direction to rectify to the builder because the wind classification is not “building work”. [11] Mr Agius sought external review of that decision in this Tribunal. Preliminary issue and its determination [12] The determination of a preliminary issue was flagged in a Direction made 7 October 2020 following a compulsory conference between the parties. [13] An application for miscellaneous matters filed by the QBCC on 21 October 2021, sought orders striking out what it termed Complaints 1A and 2. An application for miscellaneous matters filed by Mr Agius on 22 October 2021 sought Directions for the future conduct of the matter. Those applications were addressed in a Directions Hearing on 8 February 2021 when it was directed that it be determined as a preliminary issue: whether the work was “building work” in whole or in part. [14] Member Cranwell determined the preliminary issue on the papers. The Member said that for convenience he adopted the QBCC categorisation of Mr Agius’ first Complaint into two parts: (a) the design of the wind classification for the property (Complaint 1A); and -- 3 of 10 -- 4 (b) the construction of the property, based on the wind classification (Complaint 1B). [15] The Member noted it was not in dispute that Complaint 1B was building work. [16] The Member proceeded from a factual premise that Complaint 1A relates to structural engineering plans prepared by NEC on 4 December 2017 and a Form 15 Compliance certificate for building design or specification dated 15 December 2017, which specifies a wind classification of C2. The Member reasoned that, accordingly Complaint 1A relates to work performed by an engineer, which is excluded from the definition of “building work” by item 5 of Schedule 1 of the QBCC Regulation. [17] The Member noted that it is the engineer, and not the building designer, who is responsible for determining the wind classification. The Member said that while the plans prepared by the building designer refer to the wind classification of the property as determined by the engineer, s 5(2) of the QBCC Regulation makes it clear that this does not prevent the application of Schedule 1. [18] The Order made is that: Complaint 1A and Complaint 2, as defined in these reasons, do not relate to ‘building work’ as defined in Schedule 2 of the QBCC Act. If I insert the adopted definition of Complaint 1A, the Order is that: the design of the wind classification for the property (Complaint 1A) does not relate to ‘building work’ as defined in Schedule 2 of the QBCC Act. Leave to appeal or appeal [19] As this is an application for leave to appeal or appeal an interlocutory decision, the leave of the Appeal Tribunal is required before the appeal may proceed. Leave of the Appeal Tribunal is also required to the extent that the appeal is on a question of fact or mixed law and fact.2 [20] Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected.3 In deciding whether to grant leave to appeal, an assessment of the prospects of the proposed appeal is undertaken.4 [21] The other consideration which may be relevant to the grant of leave is if there is a question of general importance upon which further argument, and a decision of the appeal tribunal would be to the public advantage.5 [22] If leave to appeal is granted the appeal is dealt with under s 146 of the QCAT Act in the case of an appeal on a question of law, and under s 147 in the case of appeal on a question of fact or mixed law and fact. [23] In this case interpretation of the QBCC Act raises a question of importance to the public generally, that is to what extent does work excluded from the definition of building work infect the whole of the building process to take all of what would otherwise be building work outside the definition and therefore the remedial reach of the QBCC. The issue for Mr Agius is whether it is correct that work carried out by 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3). 3 Pickering v McArthur [20005] QCA 294, [3]. 4 Rintoul v State of Queensland & Ors [2018] QCA 20, [10]. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty LTd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580. -- 4 of 10 -- 5 builders (and building designers) in designing or constructing a building which allegedly fails to comply with regulatory requirements as to wind loadings, cannot be “building work” for the purposes of the QBCC Act, merely because there was an engineer involved in the project who specified and certified structural elements based on an incorrect wind classification. [24] That issue has broad significance but also fundamentally affects any remedies available to Mr Agius under the QBCC Act for rectification of allegedly defective work. That raises a matter of substantial injustice. [25] The question of whether there is a reasonably arguable case of error on the part of the Member will be addressed by a consideration of the grounds of appeal. Observations [26] As I understand the submissions made on behalf of Mr Agius, his overarching concern with the decision under review and determination of the preliminary issue is that to date the QBCC has contended the builder has no responsibility in relation to construction of the house because he is simply complying with the design based on the engineer’s determination of the wind classification. Mr Agius says that such a contention ignores the builder’s responsibilities to comply with the Building Code and relevant Australian Standards. [27] It is plain the basis of the QBCC’s decision is that because the builder complied with the engineer’s wind classification of C2, his work could not be defective and because the wind classification is engineer’s work, the Complaint did not relate to building work with the result that no direction to rectify would issue. [28] It became apparent in the course of the QBCC’s submissions that its position has changed from that set out in its decision and from its written submissions. First, the QBCC acknowledged that the question of whether a direction to rectify should be issued in circumstances where a builder has relied on a design is a matter for the tribunal in the actual review proceedings. The QBCC notes that the purpose of the separate question was to define what is within the scope of the review and what is not. Next it was acknowledged that the work of the building designer is building work and the physical construction of the house by the builder is building work. [29] Following a question from me, Counsel for the QBCC made a submission as to the effect of the decision made by the Member and its effect on the ultimate remedies available to Mr Agius. Counsel said that the effect is quite narrow. That is, there is no jurisdiction for the tribunal standing in the shoes of the QBBC to require the engineer to take any step. However, it would be open to the tribunal to require the builder to rectify work which, for example, did not meet Australian standards. It would be open to the builder to argue that he relied on the engineer, and in those circumstances it would not be fair to issue a direction to rectify. Counsel observed that the Glen Williams6 case may be relevant. However, Counsel said that those matters are not something the appeal tribunal needs to decide. [30] Again, in response to a question from me, Counsel for the QBCC agreed that in the substantive review it is possible that Mr Agius could achieve an order that the builder, for example correct the cladding or the width of the house or the other things which are said to flow from a wrong wind classification and which do not comply with 6 Glen Williams Pty Ltd v Queensland Building Service Authority [2012] QAT 127. -- 5 of 10 -- 6 Australian standards. Counsel said that one could tick off that itis building work, ask is it defective and then get to the third question for a tribunal which is, is it fair to direct rectification. When I put to Counsel that was not how the QBBC approached the issues in its original decision he agreed and said that the original decision is still in review. [31] Finally, Counsel for the QBCC made the point that this appeal may have little utility, because regardless of whether there was error on the part of the Member, the work of the engineer will not be building work, but the work of the builder in building the house is building work and will be considered by the tribunal. [32] I also observe that the meaning of the words in the preliminary question is vague. There is no attempt to describe what “work” is being considered by reference to the wording of the Complaint made by Mr Agius. [33] In his reply submissions Mr Agius makes the point that there is no attempt by the QBCC or the Member to consider the work by reference to the work done by the engineer, the work done by the building designer and the work done by the builder. The Member only considered if the work of the engineer was building work. Counsel for Mr Agius submitted that the question asked of the Member goes to the work of the building designer. The question asks if the “design of the wind classification for the property” is building work. Counsel for Mr Agius says that for the first time, on the hearing of the appeal, it was said that it is not disputed that the building designer’s work is building work. Counsel for Mr Agius says that the Member was not asked if determination of the wind classification for the property is building work. That is, if the engineer’s work is building work. If that was the issue, then it would be conceded that it is not building work. In any event, Mr Agius points to the actual order made which is that the design of the wind classification for the property is not building work. [34] The QBCC maintain that the question asked of the tribunal was about the engineering plans. It was conceded that the question was not framed as well as it could be, but the question was not whether the work of the building designer was building work. [35] Given clarification of the QBCC’s position which emerged at the hearing, and which appeared to meet some of Mr Agius’ concerns as to the meaning and effect of the order made by the Tribunal, the parties agreed to take some time to discuss the matter further and if possible to reach agreement as to the disposition of the appeal. The parties were unable to reach any agreement. [36] In my view confusion has been caused by very loose language around what ‘work’ is being analysed as to whether it is ‘building’ work’ and what the words ‘design of” the wind capacity means. I note that it has variously been described as “designing/calculating the wind classification for the property”7, “determination of the wind capacity of the building”8 and “the design to the wind classification upon which the construction proceeded”.9 [37] Mr Agius’ reply submissions isolate the fundamental problem with the unclear language used to formulate the question for determination by the Tribunal and the reframing of the Complaint by the QBCC. The Complaint is reframed by the QBCC 7 First Respondent’s submissions in response to application for leave to appeal, filed 10 November 2022, paragraph 4.2. 8 Ibid 1.5. 9 Ibid 4.12. -- 6 of 10 -- 7 to relate to “the design of the wind classification for the property”, rather than being a Complaint about the design of the property to the wind classification. Mr Agius makes the point that wind classifications are not “designed”, rather certain Australian Standards prescribe set criteria for determining the wind classification or wind loading that are applicable to a particular building. Grounds of appeal [38] I intend to deal with the third ground of appeal first as I consider it is established. [39] The ground is that the Member erred in law in failing to dismiss the application for determination of a preliminary issue on the basis that the separate question posed by the QBCC was not based on facts, found or agreed, but on the QBCC’s interpretation of the nature of work the subject of Complaint item 1 which was disputed by Mr Agius. [40] Mr Agius says that he expressly disputed the QBCC’s assertion that the item of work the subject of his claims related to “the design of the wind classification for the property (Complaint 1A) and Complaint 1A pertains to the Engineering Plans.” [41] I accept that Mr Agius position was clearly put to the Member on the material before him.10 QBCC’s submissions [42] The QBCC’s written submissions are that Mr Agius asserts the engineer’s plans are not relevant to the wind classification. I consider that misstates Mr Agius’ submission. The QBCC construes the ground of appeal as mere disagreement with the decision of the Member, which it says is not a ground of appeal. Consideration [43] The principles that govern the circumstances in which an order will be made for the separate trial of preliminary issues are settled. Determination of a preliminary question must involve “a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties”.11 The point of determining a preliminary issue is to dispose of an issue between the parties so that remaining issues are also resolved or at least limited. The history of the matter is that the QBCC has sought to dispose of the whole of Mr Agius’ Complaint relevant to the review by determination of a preliminary issue. That would not appear to be the QBCC’s current position. [44] Applegarth J provided a useful summary of the established principles in Byrne v People Resourcing (Qld) Pty Ltd & Ors:12 a declaration or other order which is “not based on facts, found or agreed, will be purely hypothetical and at best…do no more than declare that the law dictates a particular result when certain facts in the material pleadings are established.” If the assumed facts are in dispute, then the answers may be of no use at all to 10 Applicant’s response to Respondent’s submissions dated 28 October 2020, Vol 4 Appeal Book commencing page 1728. 11 Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495, [8] following Bass v Perpetual Trustee Co Ltd (1999) 198 CLR 334. 12 [2014] QSC 039, [5] following King’s College v Allianz Insurance [2004] 1 Qd R 394, 398-401 and BOQ Ltd v Chartis Australia Insurance Ltd [2012] QSC 319, [31]-[40]. -- 7 of 10 -- 8 the parties. It may be no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case. It has been said that “judicial decisions based on assumed facts are suitable only for questions of law and then only if the facts as pleaded exhaust the universe of relevant factual material”. (footnotes omitted) [45] In this matter it is no longer a question of whether a preliminary determination should proceed, but rather, once a preliminary determination has been directed to occur on what terms should it have proceeded. The established principles should have been observed because they certainly flag the pitfalls if they are not. In my view the parties have ended up with a determination which is of no utility because it does not address the real issues in dispute. [46] The Member did not address Mr Agius’ concerns in relation to re-framing of his Complaint by the QBCC, he did not address the meaning of the words “design of the wind classification” or refer to all the evidence as to what type of work associated with construction of the house might be caught by the phrase. The Member erred in law by proceeding to determine the preliminary issue without first establishing that the facts were concrete and established or agreed. [47] The result is the Member found that engineering work is not building work within the terms of the QBCC Act, which is uncontroversial between the parties and in the end of no utility in quelling the actual dispute between the parties. However, the additional problem arises that the order made does not on its face refer to engineering work and is not plain as to its meaning. The order has been construed by Mr Agius as having the effect of determining the review application without reference to the evidence or the real issues in dispute. I find that Mr Agius construction is fairly available, given the various descriptions by the QBCC of what is meant by “design of” the wind classification. A determination of the review application without the need for a full hearing was in fact the outcome originally sought by the QBCC. [48] I conclude that there has been an error of law by the Member in proceeding to determine a preliminary issue by reference to facts not agreed by both parties and making an order which on Mr Agius’ construction disposes of his review application without reference to the facts raised by Mr Agius as to the responsibilities of the builder and building designer to comply with the Australian Standards and Building Code with respect to wind classification. [49] The other grounds of appeal feed into the final ground of appeal which I have considered. [50] The first ground of appeal asserts an error of fact and law in misconstruing the nature of the work the subject of the Complaint relevant to the application to review the QBCC’s decision. I accept the submission that by reframing the terms of Mr Agius’ Complaint the QBCC erroneously categorised and identified the work, leading the Member into error, whereby the Member identified the relevant work as being the structural engineering plans prepared by Northern Consulting and work performed by an engineer, when Mr Agius says that was not the work the subject of his Complaint. Mr Agius says that his Complaint relates to the design of the building by the builder generally and through its building designer, which concerns an entirely different aspect of works to the engineering plans prepared and certified by the engineer. I accept that was Mr Agius’ Complaint and that was apparent on the material before the -- 8 of 10 -- 9 Member.13Mr Agius’ submissions were not dealt with by the Member as he moved to the QBCC’s categorisation of the Complaint “for convenience”. I conclude that the Member made an error of fact as to the nature of Mr Agius’ Complaint. [51] It is asserted that the Member erred in law in failing to construe the work the subject of the actual Complaint as building work for the purposes of s 72 of the QBCC Act. That is, the Member failed to construe as building work the builder’s work in designing the home and preparing design drawings which failed to comply with Australian standards, when that work was not work performed by an engineer. The Member did not undertake that interpretation task because of his mistaken finding as to the nature of Mr Agius’ Complaint. I cannot take the further step and find that an error of law occurred in a process of construing the facts by reference to legislation when that process did not occur. [52] Except for the way in which the order of the Member is cast, I agree with the position put by the QBCC at the hearing that in the end the decision of the Member has a very narrow compass as in substance it relates only to work performed by the engineer. Insofar as the work of the building designer and builder are concerned, the QBCC acknowledged that their work is building work and that subject to a question of fairness they may be subject to a direction to rectify once the review is finally determined. The QBCC acknowledged that its decision remains open to ultimate review by the Tribunal. [53] The second ground of appeal canvasses a matter addressed in the other two grounds of appeal that by adopting the QBCCs categorisation of the nature of the work the subject of Complaint item 1, the Member failed to take into account that the work was design and construction of the house. I have accepted that an error of fact occurred and that the Member did not refer to Mr Agius’ material as to the true nature of his Complaint and did not demonstrate the basis for his conclusion as to the nature of the work the subject of the Complaint. [54] I do not consider that there has been an error of law associated with the Member’s conclusion as to the nature of the work the subject of the Complaint. I think Mr Agius makes a strained argument when he submits that the Member’s decision was affected by jurisdictional error by the adoption of an illogical and irrational reasoning process and a failure to disclose the evidence on which he relied. Conclusion [55] On the basis that an error of law is made out with respect to appeal ground 3 and an error of fact is made out with respect to appeal grounds 2 and 3, leave to appeal is granted. [56] In relation to an error of law s 146 of the QCAT Act sets out the Appeal Tribunal’s powers. Mr Agius submitted that in the event it is concluded there has been an error of law as submitted with respect to ground of appeal 3, the appropriate order is that the application for determination of a preliminary issue should be dismissed and the order made on 4 August 2021 set aside. The QBCC did not expressly address the relief sought by Mr Agius in the event an error of law is found. 13 Applicants Response to Respondent’s submissions dated 28 October 2020, vol 4 Appeal Book, page 1728. -- 9 of 10 -- 10 [57] In relation to errors of fact Mr Agius submits that by way of a rehearing under s 147 of the QCAT Act the Appeal Tribunal may find that the work the subject of Mr Agius’ Complaint is building work as defined by the QBCC Act and may make an order to that effect, in substitution for the Order made below. [58] The QBCC submits that is not an order which I should make as the order goes beyond what the Member was asked to consider by the QBCC. I have noted the acknowledgements made by the QBCC in these proceedings that the work of the building designer and the builder was building work as defined. I do not intend to make findings or orders in this regard because I agree that would determine a matter not decided by the Member. I think that matter is more properly a consideration in the review proceeding. It is also possible that the findings of the Tribunal and the Appeal Tribunal in the litigation between Mr Agius and the builder may be relevant in the ultimate review. [59] I consider the appropriate relief in this matter is that the decision of the Tribunal on 4 August 2021 is set aside and in lieu thereof an order made that the preliminary issue is not suitable for determination so that the preliminary issue proceeding is dismissed. -- 10 of 10 --