A recent Supreme Court decision has raised questions as to the legality of directions to rectify issued to builders by the Queensland Building Services Authority (QBSA).
In McNab Constructions Australia Pty Ltd v Queensland Building Services Authority, the Supreme Court declared that numerous directions to rectify issued by the QBSA were void because they did not reflect the correct legal timeframe to fix defects.
Partner Adam Carlton-Smith and senior associate Michelle Hall discuss this case and its implications for builders.
- A builder who receives a direction to rectify from the QBSA should check the direction thoroughly to ensure it complies with the Queensland Building Services Authority Act 1991. If the direction does not comply with the QBSA Act, the builder may be able to argue that the direction to rectify is void on a technical ground.
- Builders should check that they have been given 28 days from the date of receiving a direction to rectify to fix any defects.
- Licensees may question the implications of this decision on previous directions to rectify that were in fact void. If you have suffered adverse consequences as a result of a void direction, you may be able to seek redress.
McNab Constructions Australia Pty Ltd v Queensland Building Services Authority
In this case, the QBSA issued a number of directions to rectify to McNab Constructions, which included sentences such as “The Time Period for Completion is TWENTY EIGHT (28) days from the date hereunder” and “The time period for completion is Twenty Eight Days (28) from the date of this document”.
The documents were posted from the QBSA head office in Brisbane to McNab at a post office box in Toowoomba. In Court, the QBSA agreed that McNab could not have received any of these documents on the same day they were posted, but at the very least, must have received the documents the next day. McNab also provided evidence that some of the directions to rectify were in fact received the day after they were shown as being posted.
The Court found that the relevant section in the QBSA Act under which directions to rectify are issued, section 72, contains a mandatory requirement for a builder to be given a minimum period of 28 days to rectify work. This 28 day period runs from when the direction is received, not when it is posted.
As a result, the directions to rectify sent to McNab were declared void by the Supreme Court. However, the Court also found that QCAT still had jurisdiction to conduct a merits review of the decision to give the directions. In other words, if an application to review a decision before QCAT is commenced, QCAT will still be able to proceed to determine that application.