QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Horsfall v Queensland Building and Construction Commission & S Watson Pty Ltd t/as Eclipse Patios and Extensions [2023] QCAT 346	
PARTIES:	margaret louise horsfall
charles maclure horsfall	

(applicants)	

	v	
	queensland building and construction commission
s watson pty ltd t/as eclipse patios and extensions	

(respondents)	

APPLICATION NO/S:	GAR274-21	
MATTER TYPE:	General administrative review matters	
DELIVERED ON:	5 September 2023	
HEARING DATE:	11 April 2023	
HEARD AT:	Brisbane	
DECISION OF:	Member Gordon	
ORDERS:	The QBCC’s decision to give S Watson Pty Ltd t/as Eclipse Patios and Extensions a direction to rectify (the reconsideration decision of 28 June 2022) is confirmed.	
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the decision under review was substituted by a reconsideration decision – whether various items of complaint are ‘contractual matters’ or ‘not building work’ – whether the reconsideration decision should be confirmed, amended, or set aside and a new decision substituted
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s23, s 24, s 74
Queensland Construction and Commission Act 1991 (Qld), s 72, schedule 2
Queensland Building and Construction Commission Regulation 2018 (Qld), schedule 1
ABG83 Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 386
Affordable Housing Company Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 128
Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission and De Luca Corporation Pty Ltd [2023] QCAT 139
Buildmaster Pty Ltd v Queensland Building and Construction Commission and ors [2022] QCAT 380
Glen Williams Pty Ltd v Queensland Building Services Authority [2012] QCAT 127
Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480
Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2021] QCAT 245
JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2023] QCAT 316
O’Donnell t/as Ronin Built v Queensland Building and Construction Commission [2020] QCAT 293
Paul Wayne Townsend v Queensland Building and Construction Commission [2019] QCAT 239
Rosecove Pty Ltd v Queensland Building and Construction Commission & Anor [2023] QCAT 101	
APPEARANCES & REPRESENTATION:	

Applicants:	
Margaret Horsfall self-representing and representing Charles Horsfall	

Respondents:	
Scott Seefeld (counsel) for QBCC	

Stephen Watson for S Watson Pty Ltd t/as Eclipse Patios and Extensions 	

REASONS FOR DECISION
[1]	This application started life as an application to review a decision made by Queensland Building and Construction Commission on 25 January 2021.   As sometimes happens whilst review applications are in the tribunal, on 31 May 2022 the tribunal invited the QBCC to reconsider the decision.  This resulted in a decision dated 28 June 2022 called the ‘reconsideration decision’.  That is now the decision under review.
[2]	The parties are Margaret Louise Horsfall and Charles Maclure Horsfall (who I shall call ‘the homeowners’), the QBCC, and S Watson Pty Ltd t/as Eclipse Patios and Extensions (who I shall call ‘the builder’).
[3]	The builder installed a carport and rear patio at the homeowners’ home in Moreton Bay.  This was in 2017.  The homeowners were unhappy with the work and complained to QBCC.  This was on 14 May 2020.  There were 17 items of complaint.
[4]	The QBCC decided to issue a direction to rectify and complete work in respect of some parts of items of complaint - 4, 9, 10 and 11 but not at all for the other items.  This was on 7 October 2020.
[5]	The homeowners asked the QBCC to reconsider this by internal review.  This resulted in a different decision, in which the QBCC decided not to issue a direction to rectify at all.  This was on 25 January 2021.  This decision was after it was realised that the carport and patio had been built for a site with wind classification N2, when they should have been built for wind classification N3.  The internal review decision was on the basis that it would be unfair to the builder to issue a direction to rectify where the construction followed a design which was for the wrong wind classification.
[6]	The homeowners then applied to the tribunal for a review of the decision of 25 January 2021 and this application was given the case number GAR274-21.
[7]	In the reconsideration decision the QBCC decided to issue a direction to rectify in respect of items of complaint 4, 9, 10 and 11 but not for the other items.
Nature of the review in the tribunal
[8]	When deciding a review such as this, the tribunal endeavours, by a fresh hearing on the merits, to produce the correct and preferable decision. 
[9]	In these reviews, the tribunal may (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions that the tribunal considers appropriate.
[10]	These types of review are done under section 72 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).  In such a review, section 72 requires the tribunal to determine the following four issues: 
(a)	Is the work building work as defined in the QBCC Act? 
(b)	Is the building work defective or incomplete? 
(c)	Who is the person responsible for the defective or incomplete building work? 
(d)	Is it fair, in all the circumstances, to exercise the discretion to give the direction to rectify the defective or incomplete work to the builder?
Certain questions of principle arise
Definition of building work
[11]	The definition of building work is important because under section 72 a direction to rectify can only be issued in respect of building work. 
[12]	The definition of building work is in schedule 2 of the QBCC Act, and of importance for this matter it includes (amongst other things):
(b) 	the renovation, alteration, extension, improvement or repair of a building; or
(e) 	any site work (including the construction of retaining structures) related to work of a kind referred to above; or 
(f) 	the preparation of plans or specifications for the performance of building work; or 
(fa) 	contract administration carried out by a person in relation to the construction of a building designed by the person; or
(h) 	carrying out site testing and classification in preparation for the erection or construction of a building on the site;
[13]	The schedule provides that ‘building’ includes any fixed structure.
[14]	The schedule provides that work of a kind excluded by regulation is not building work.
[15]	In this matter the builder claims to have had engineering and designing input into the design of the car port and patio.  So it is of relevance to note that the regulation excludes from the definition of building work:
4 Work performed by architects 
Work performed by an architect in the architect’s professional practice, including, for example, carrying out a completed building inspection.
5 Work performed by engineers 
Work performed by an engineer in the engineer’s professional practice.
34 Certification work by building certifiers 
Certification work performed by a building certifier under the Building Act 1975 in the certifier’s professional practice.
[16]	The policy reason why this work is not building work, and therefore cannot be subject to a direction to rectify under section 72 of the QBCC Act, seems to be because standards are maintained through these professions’ own codes of practice enforced by their own disciplinary bodies.  It is clear that ‘professional practice’ does not mean that the professional must be acting as an independent contractor in their own business for these exclusions to apply.  A registered engineer for example would act in professional practice when undertaking professional engineering services for an employer.
Contractual matters
[17]	In this matter as quite often happens, the QBCC has declined to issue a direction to rectify on items of complaint which are ‘contractual matters’.
[18]	The ‘contractual matter’ expression was used by the QBCC when responding to item 3 of the complaint where the homeowners said that the downpipes should have been connected to the stormwater tank in accordance with the contract, and item 16 where the homeowners said there should have been a guard fitted to the gutters to fulfil a possible implied obligation in the contract.  The QBCC did not identify any defective building work with respect to the water disposal arrangement, so the QBCC said that these were contractual matters between the builder and the homeowners.
[19]	The expression was also used for in item 13, where the homeowners said that the builder was obliged by the contract to engage architects to design the work and approve it.  The QBCC said this was a contractual matter between the homeowners and the builder and ‘did not concern whether rectification of building work should be directed under the QBCC Act’.
[20]	Under section 72 of the QBCC Act, when making a decision about whether to issue a direction to rectify the building work will need to be identified and a decision made about whether it is defective or incomplete.  It is also necessary to identify ‘the person who carried out the building work’.
[21]	It seems to me that identifying the building work, and identifying the person who carried it out, will usually involve an examination of the contract and the plans and specifications to see who had a contractual obligation to do those things within the definition of building work in schedule 2 of the QBCC Act, subject to the exclusions in the regulation.
[22]	The contract will also inform the decision whether such building work was incomplete.  The word ‘incomplete’ is not defined at all for the purposes of section 72, and the word is clearly not intended to mean the same as such expressions as ‘practical completion’ or ‘satisfactory completion’ used elsewhere in the QBCC Act or ‘substantially completed’ used in the Building Act 1975 (Qld).
[23]	There is a discretion whether to issue a direction to rectify for incomplete building work, and it might not be issued it were unfair to do so, for example if the homeowner had locked out the builder.  Because of this discretion, there is no reason to read the word ‘incomplete’ restrictively.  I am assisted by Member King-Scott’s review in Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission and De Luca Corporation Pty Ltd [2023] QCAT 139 of case law about when relevant building work is completed for the purpose of section 72A(4) which concerns the time limit when a direction to rectify can be given.
[24]	But since a direction to rectify could be issued for incomplete work, it seems to me wrong to refuse to consider a complaint about work not having been completed as the contract required, on the grounds that it was a ‘contractual matter’ and therefore outside section 72 for that reason.
[25]	I think the position is different when considering ‘defective’ building work.  Although it will be implied in any building contract that the builder must carry out the work with due care and skill and with proper materials, and generally the builder has an obligation to build in accordance with the plans and specifications, these are not the obligations considered when deciding whether building work was ‘defective’ under section 72.
[26]	The word ‘defective’ in section 72 ‘includes faulty or unsatisfactory’.  The definition is also affected by policies made by the commissioner.  The Rectification of Building Work Policy has this definition:
Defective building work means building work that is faulty or unsatisfactory, and includes, for example, work that: 
a. 	does not comply with the Building Act 1975, Building Code of Australia or an applicable Australian Standard 
b. 	involves the use of a manufactured product, and that product has been used, constructed or installed in a way that does not comply with the product manufacturer’s instructions.
[27]	It is clear from the use of the words ‘and includes, for example’ in the definition of defective building work in the policy, that the two examples a and b in the definition are not exhaustive.  This means that building work could be defective in other ways.  This can be seen in the following definitions of non-structural defective building work and structural defective building work.  These refer to other times when building work would be regarded as defective:
Non-structural defective building work means defective building work (other than structural defective building work or residential construction work causing subsidence) that is faulty or unsatisfactory because: 
a. 	it does not meet a reasonable standard of construction or finish expected of a competent holder of a contractor’s licence of the relevant class; or 
b. 	it has caused a settling in period defect in a new building.
Structural defective building work means defective building work (other than residential construction work causing subsidence) that is faulty or unsatisfactory because it does one or more of the following: 
a. 	adversely affects the structural performance of a building; 
b. 	adversely affects the health or safety of persons residing in or occupying a building; 
c. 	adversely affects the functional use of a building; 
d. 	allows water penetration into a building.
[28]	We also know that building work can be defective for the purposes of section 72 where there has been non-compliance with the Building Code of Australia even if certified plans are followed by the builder.
[29]	So whether work is defective under section 72 is not informed by the contractual requirements.  In such a case it is right to describe an item of complaint that work was not in accordance with the contract as a ‘contractual matter’ and outside section 72.  A simple example would be where the item of complaint was that a new house was externally painted in the wrong colour.  Provided the painting was done properly, this would be outside section 72 and a direction to rectify could not be issued.
[30]	If work is defective however, the contractual rights and obligations are of relevance when considering whether it is unfair to give a direction to rectify, and this is expressly provided in section 72(3) of the QBCC Act.
Remedial work done by the time of the tribunal hearing
[31]	At various times the builder did remedial work to the construction which is the subject of this review.  One was after heavy rainfall soon after it was built, when the builder installed larger gutters and added another downpipe.  Another new downpipe was added after a second storm.
[32]	In addition to the above, two batches of remedial work have been done by the builder following the directions to rectify.
[33]	The first batch of remedial work was after the direction to rectify issued by the QBCC on 7 October 2020.  That direction to rectify stated:
The installation of the carport to the existing house does not comply with the Glynn Tucker consulting engineers “Tech-Specs engineering and design Vers 1.01”, 2018, in that in the connection method has been completed incorrectly affecting the structural performance of the structure.
[34]	The builder complied with that direction and submitted photographs to the QBCC showing this.  That was on 4 November 2020.
[35]	The second batch of remedial work was after the Reconsideration Decision of 28 June 2022.  That decision resulted a direction to rectify which stated that the defective building work was:
The installation of the Shademaster panels to the rear patio have not been completed in accordance with the approved engineering (Tech-Specs Engineering Design Manual V1.01HD – 16.09.2015 and Tech-Specs FOS1.01HD – Sheet FO1 30/08/2015) in that the span exceeds the minimum requirements, and the installation of the front carport has not been completed in accordance with the approved engineering (Tech-Specs Engineering Design Manual V1.01HD – 16.09.2015 and Tech-Specs FOS1.01HD – Sheet GO1 30/08/2015) in that the connection methods are deficient, and both the front carport and rear patio have not been completed in accordance with National Construction Code 2016 Vol 2, Part 3.11 – Structured Design Manuals and Australian Standard 4055:2012 – Wind Loads for Housing in that the structures were not constructed to an adequate wind load (determined as N3 wind classification), resulting in deflection of the panels under normal conditions, adversely affecting the structural performance of the structures.
Pertains to items 4, 9, 10 and 11 on the subject complaint.
[36]	The work done by the builder in compliance with this direction to rectify was inspected just six days before the hearing of this review, and the building inspector’s report was handed up at the hearing and marked exhibit 5.
[37]	The report stated that new engineering plans had been created by engineers, and a new form 15 (compliance certificate for building design or specification) issued.  Although the plans did not state that they were for wind classification N3, this had been confirmed by the engineers in an email which was attached to the report.  The new design plans attached to the report showed much narrower spans for the patio roof.  They also appear to show strengthened beams for the car port than in the previous plans.  The inspector found that both the carport and the patio roof as now constructed were satisfactory.  There was one item of non-compliance according to the inspector: although the connection methods of the carport to the house were compliant, a bracket connecting the patio roof to the house was attached with 3 M10 bolts instead of 4 M10 bolts as required by the plan.
[38]	The homeowners told me in the hearing that they also had the recent work inspected and as a result of that inspection they disagree that the work has been done properly.
[39]	The question of the bolts is subject to another application for review in the tribunal because the builder disagrees with the requirement for 4 bolts instead of 3.
[40]	The question arises how far the completion of the remedial work (with the one minor issue about the bolts outstanding to be resolved) affects this review.  One question is whether the correct and preferable decision about whether to issue a direction to rectify should take into account everything known at the time of the tribunal hearing (or in this case at the time of the tribunal decision, its decision being reserved until final submissions had been made).  Or whether the discretion should be exercised as if the decision was made at the time of the decision under review.
[41]	On the face of it this would have an important effect on the outcome of the review in some cases, because if by the time of the tribunal hearing remedial work had been carried out, then it could be argued that the work was not defective anymore and so no direction to rectify could be issued.  Also there would be a powerful argument to say that there was no utility in issuing a direction to rectify because it had already been complied with.  Although that submission is not made here, the builder does submit that it was be unjust to have a public finding against it ‘which would impact its reputation and future livelihood and does not reflect our otherwise exemplary record’.
[42]	In Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480 the question whether the decision under review should be considered at the time of the decision or at the time of the review was directly in issue.  The builder had attended site and rectified three items in the direction to rectify, so that by the time the tribunal came to review the decision, that work was no longer defective.  Member Traves considered the statutory provisions and various authorities and concluded that:
[40] On the proper application of the authorities it is necessary, therefore, to consider the same question as the original decision maker.  Although the Tribunal will be entitled to consider evidence which has arisen after the decision under review, the admissible evidence will be confined to the question which the original decision maker was bound to decide, as if the original decision maker was making the decision at the time it is being reviewed by the Tribunal.  The Tribunal cannot take into account matters not before the original decision maker where to do so would change the nature of the decision or, to put it another way, the question to be answered.
[41] In this case, the nature and incidents of the decision under review, in my view, support the position that the review is limited to the question of whether, at the time of the decision the subject of review, here the internal review decision, a direction to rectify should have been issued.  This follows from the intrinsic nature of a decision to issue a direction to rectify, which involves an assessment of whether work is defective at a particular point in time, particularly in the context of the objects of the QBCC Act and of the role the direction to rectify decision has in the broader statutory scheme applicable to the rectification of defective or incomplete work.
Citations omitted
[43]	So Member Traves decided that in deciding whether the direction to rectify should be issued at the time of the decision under review, the tribunal could take into account all current evidence relevant to that question but that evidence excludes evidence of rectification when done after the decision.  On that basis, the decision under review was confirmed but the tribunal’s order stayed the decision in so far as it required work to be to rectify the three items which had been dealt with.
[44]	On behalf of the QBCC, Interlink is relied on and I am asked ‘to consider whether as at 28 June 2022, the correct and preferable decision was to issue a direction to rectify to the Builder in respect to complaint items 4, 9, 10 and 11 and not to give a direction to rectify in respect to complaint items 1, 2, 3, 5, 6, 7, 8, 12, 13, 14, 15, 16 and 17’.  It is said that there is utility to confirm the decision to issue a direction to rectify because the direction will be recorded on the publicly available licensee register maintained by the QBCC, but also because the homeowners have asked for the builder to be directed to rectify other matters.
[45]	In Paul Wayne Townsend v Queensland Building and Construction Commission [2019] QCAT 239, the defective building work had been rectified not by the builder, but by a third party.  However, the builder applied to have the direction to rectify set aside because the rectification work had been done.  Having considered a number of authorities and statutory provisions, Member Gardiner decided that although the circumstances and facts at the time of the tribunal hearing should be taken into account by the tribunal in its review, this did not mean that the decision to issue a direction to rectify should be set aside.  The fair result was to confirm it.
[46]	A similar approach was taken by Member Bertelsen in Affordable Housing Company Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 128, who said that:
Simply making assertions about what might amount to latter day compliance is not a basis to argue for the cancellation/setting aside of a direction to rectify.
[47]	In Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2021] QCAT 245, the builder rectified all or part of the defective work which was the subject of the direction to rectify.  Relying on Townsend, at the review hearing the builder sought to have the direction to rectify set aside.  Following both Interlink [2020] and Townsend, Member Burke said:
[71] The main focus of the review process is to consider the same question as the original decision-maker and to determine whether, at the time the direction was issued, the correct and preferable decision was to issue or not to issue a direction to rectify.
[74] I intend to follow the approach of the tribunal member in Townsend and Oracle Building Corporation in exercising a discretion whether to issue a direction to rectify works which have already been remedied since the original direction to rectify issued by the QBCC.
[48]	On that basis the member confirmed the decision to issue a direction to rectify but stayed such part of the decision where it was agreed the remedial work had been done.
[49]	The lack of practical utility in confirming a decision to issue directions to rectify and unfairness to the builder where remedial work had been done, was sufficient for the tribunal to set aside the decision in O’Donnell t/as Ronin Built v Queensland Building and Construction Commission [2020] QCAT 293, although in that matter Member Kanowski recognised the utility in reflecting the decision in the builder’s licence record, which would be consistent with one of the objects of the QBCC Act to ensure the maintenance of proper standards in the building industry.
[50]	In ABG83 Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 386, Member Hughes recognised the public interest for directions to rectify to remain on the register despite the work having since been rectified.
[51]	That evidence of events after a decision to issue a direction to rectify was admissible in the tribunal in its review was confirmed by Senior Member Browne in Rosecove Pty Ltd v Queensland Building and Construction Commission & Anor [2023] QCAT 101 where she said:
[20] In my view, the Tribunal’s role on review is to effectively stand in the shoes of the QBCC decision-maker exercising the same powers under the QBCC Act to arrive at the correct and preferable decision.  This requires the Tribunal to consider all of the relevant material including any evidence that is obtained after the QBCC made the reviewable decision.
[52]	These principles and the fact of the recent work done was discussed with the parties in the hearing, in order to decide whether the application for review could proceed.  All parties wished to proceed with the review.  I also considered this to be appropriate because whether the reconsideration decision should be confirmed, amended or set aside was a discrete issue which could be dealt with irrespective of the recent remedial work.
Overall view of the homeowners
[53]	In their final submissions, the homeowners submit ‘that the correct and preferable decision is that the Reconsidered Decision of the QBCC of 28 June 2022 be confirmed’.  From this, it appeared that the homeowners agreed with the reconsideration decision and were no longer asking the tribunal to review it.  Directions were issued asking whether the homeowners were withdrawing the application for review.  
[54]	The homeowners indicated that they were not withdrawing the application for review.  Instead, the homeowners asked for a hearing ‘to review the precise nature of the decision under review and what factual matters the Tribunal should consider in making its decision’.  This is a quote from the final submissions on the QBCC’s behalf where it was pointed out that the decision under review was the reconsideration decision, and not the direction to rectify itself.  The homeowners also asked for a ‘fresh hearing on the merits of the case’.
[55]	I do not think another hearing is necessary.  There was a long discussion in the hearing about the issues and then I heard all the evidence that the parties wished me to hear.  Then the parties have been able to make submissions – with the homeowners being able to respond on two occasions now to the submissions filed on behalf of the QBCC and by the builder.
[56]	In their reasons for continuing with the application to review the reconsideration decision the homeowners refer to the various points which they have made and which, presumably, they ask the tribunal to do something about.  
[57]	This differs therefore from what happened in the recent decision of JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2023] QCAT 316.  In that matter the applicant asked the tribunal to review a decision made by the relevant department of State refusing him clearance to work with those with a disability.  The tribunal invited the department to reconsider the decision.  This resulted in a reversal of the decision and the applicant obtained the clearance he desired.  Despite this, the applicant did not withdraw the application for review.  Member Taylor considered that in the circumstances, the tribunal’s jurisdiction was ‘spent’.  Although the applicant had asked the tribunal to resolve a number of other issues, they were only relevant to the original decision was no longer under review. 
[58]	In the review application before me, the matters the homeowners refer to apply both to the original decision and its replacement, the reconsideration decision.  Hence a decision on the application for review is still necessary.
The Reconsideration Decision
[59]	In the reconsideration decision of 28 June 2022 the QBCC decided that the roof, patio and carport had an unsafe construction and may not survive a severe storm (original complaint item 4) and therefore needed rebuilding (original item of complaint 9) and that rebuilding should be of adequate standard so that the insurance company will insure the structure and dwelling (original complaint item 11).
[60]	More specifically, the reconsideration decision found the patio structure to be structurally unsound because of the builder’s failure to carry out an assessment of the wind classification of the site.  Although not mentioned in the reconsideration decision, the builder assumed that the site was classified as N2 when in fact it should have been N3.  This resulted in the design and specifications being incorrect for the site.
[61]	Even more specifically, the reports of the building inspectors relied on in the finding made in the reconsideration decision said that the construction was defective (even for wind classification N2) in that:
(a)	in the carport there was a lack of additional noggins or stiffening to the truss tails, and the connections were not in accordance with the Tech Specs design which detailed a number of connection methods;
(b)	in the carport the brackets were installed to the rafter tail with bolts and was not in accordance with the Tech Specs design;
(c)	the patio roof structure pitch was approximately 2.7 degrees and carried to less than one degree at the eaves/box gutter noting that the roof panels were deflecting under their own weight – having a variance of 3mm to 5mm central to roof panel span;
(d)	the span between the patio beams (roof span) was 6.5m but the Techs Specs design allowed only 6.38m for wind classification N2;
(e)	accordingly the patio structure was not performing adequately for its design (dead loads etc) and this was a structural defect;
(f)	there were anomalies in the documents provided by the builder and those approved by the certifier, and there was a possibility that different products had been installed at the site than those approved and these two things appeared to have contributed to the differences in wind rating, panel size and span requirements.
[62]	It is to be noted that the reconsideration decision included those defects which had been identified in the direction to rectify on 7 October 2020 and which had already been rectified by the builder.
[63]	As a result of the reconsideration decision a direction to rectify was issued and I have set out its terms above.  Briefly, it referred to neither structure having been constructed to wind load N3 as required, the roof panels to the rear patio installed with an excessive span and defecting under normal conditions, and the connection methods on the front carport being deficient.  As said above, subject to a small issue of disagreement, the QBCC accept that the remedial work required by the direction to rectify has been done satisfactorily, although the homeowners disagree.
Consideration
[64]	When considering whether the reconsideration decision should be confirmed, amended or set aside and substituted, I need to deal with a number of points made by the homeowners in the application for review.
[65]	Some of the points made by the homeowners are said to have been raised in the tribunal’s compulsory conference, but evidence of anything said or done during a compulsory conference ‘is not admissible at any stage in the proceeding’.  This does not apply to directions made or where all parties agree.  
[66]	There has been no such agreement, but directions were made in the compulsory conference that (amongst other orders) the QBCC prepare a schedule of issues in dispute and for the other parties to complete their comments in the schedule.
[67]	The homeowners say that the QBCC did not comply with the order made because they only included the items in the original list of items in their complaint to the QBCC, and did not include other complaints which they raised with the QBCC and which were raised with the member who conducted the compulsory conference.  The homeowners say they also raised these issues with the member conducting the directions hearing on 14 April 2022.  In the paperwork before me, the additional issues which the homeowners wish to raise can be found in an undated document in the hearing bundle at page 159.  These issues and any other worthy issues raised by the homeowners I have dealt with below.
Defective design, need for redesign and checking of new design
[68]	The issue about the design is closely connected to the fact that the design and specifications produced by the builder assumed a wind classification N2 when in fact the site was N3, or as the homeowners say, possibly a N4 classification.  I am satisfied on the evidence I have seen and heard that the site is classification N3.
[69]	It was part of the original complaint that the patio and carport needed to be redesigned and the builder was responsible for the design (original complaint items 5 and 6).  The homeowners add, relying on what they have been told by a structural engineer and an architect engaged by them, that the new design needs to be verified by a structural civil engineer and an architect (original complaint items 7 and 13).  They point out that in pre-contractual material, the builder said they had been designing and building outdoor areas for over 40 years and in the ‘formal proposal’ referred to ‘our architect’ and architect drawn plans.
[70]	The builder denies there was any breach of contract and refers to designer and engineer involvement in the design.
[71]	It is clear that under this contract the builder had the contractual responsibility, owed directly to the homeowners, either itself to design the work properly or arrange to have this done by someone else qualified and licensed to do so.  The work on the design done by the builder or by someone else for the builder, would produce the plans and specifications for the work.  On the face of it this would be ‘building work’ under paragraph (f) of the definition in schedule 2 of the QBCC Act.  Even if there were no actual plans and specifications, such design work would be so closely connected to the work of construction that it would be building work.  
[72]	This simple answer to whether the design work was building work is complicated by these words in the definition of building work in schedule 2 of the QBCC Act:
(having defined building work)
but does not include work of a kind excluded by regulation from the ambit of this definition
[73]	As mentioned above, the relevant regulation excludes from building work:
5 Work performed by engineers
Work performed by an engineer in the engineer’s professional practice.
[74]	This exclusion is relevant to this review because the builder says it had engineering input into the design, so that the design was not building work.  This seems to be what is said in the reconsideration decision too, because items 5 and 6 in the original complaint (design) are said to be ‘not building work’ and therefore not within section 72 of the QBCC Act.  The suggestion that design is not building work seems to be taken up in submissions made on the QBCC’s behalf, but the only example given in those submissions (that the QBCC could not decide to issue a direction to the engineers who supplied the program because it produced the wrong design), is not about this at all. 
[75]	I am uncertain whether design work is removed from the definition of building work in section 72 where the builder has a contractual responsibility to the homeowner to design the construction properly, but where the builder engages an engineer (working in the engineer’s professional practice) to create the design.
[76]	My factual finding (just below) about engineers’ input into the design of this construction however, makes it unnecessary for me to decide this question one way or the other.
[77]	When giving evidence, the director of the builder explained how the designs for the patio and car port were created.  The first step was that the builder created a drawing in-house.  This was the drawing shown to the homeowner in the first instance and appears to have been drawn by hand.  After the contract was signed, the drawing was sent to a drafting company, who checked it against Australian standards and prepared plans with the aid of a computer.  The builder sent these plans to the manufacturer of the sheets to be used in the patio and car port roofs.  The manufacturer inputted the information from the plans to a computer program and this produced engineering specifications.  The manufacturers checked the plans against the engineering specifications, and at that point if any changes were needed to the plans the builder would be informed and the plans could be amended.  When the plans were finalised they were sent to the homeowners for approval.  I was told that the plans were also sent to the certifier who checked them, but I make no finding about that.
[78]	On my findings, the design was not ‘work performed by an engineer in the engineer’s professional practice’.  The design was that of the builder with the assistance of the drafting company, who were not architects.  It is true that the manufacturer had considerable input into the design because the design had to match the manufacturer’s engineering specifications, but there is nothing to show that the manufacturer was acting as an engineer in the engineer’s professional practice.  In fact, the written materials show otherwise.  The builder’s director produced an email sent to the builder on 4 September 2017 when the original design was being produced, and this tends to show that the manufacturer’s metals business manager obtained the engineering specifications by the use of the computer program, and that he was not an engineer.
[79]	In so far as it might be said that the computer program itself provided engineering expertise, this is correct but the exclusion of ‘work performed by an engineer in the engineer’s professional practice’ is a reference to an individual practising as an engineer and not to a computer program.
[80]	In so far as it might be said that engineers certified the use of the computer program and the engineering design manual on which it was based, the difficulty is that this certification was done two years before the design was created.  Such certification did not create the design or endorse the design created two years later.
[81]	It follows that the builder retained responsibility for the design of the patio and carport and it was building work.
[82]	The design could not be done properly without taking into account the correct wind classification for the site, and there was much evidence given at the hearing about this.  Although the builder submitted to the QBCC that since the manufacturers ‘did the engineering’, they were responsible for assessing the proper wind classification, on my finding this was never the arrangement.  The engineer engaged by QBCC, Mr Van de Hoef explained when giving evidence that it was not necessary to engage an engineer to obtain a wind classification for a site, and a builder, a building certifier, a designer or even shed manufacturers and their sales staff could use a table in Australian Standard AS4055 to find the wind classification, provided they had an understanding how to use it.  He said it was possible to use online sources to obtain sufficient information about the site to use the table, but to get an accurate assessment of the wind classification it would be prudent to attend site. 
[83]	The builder attended the site.  It could be seen to be exposed.  But the builder did not provide the manufacturers with any information about this.  The builder was aware from the printout of the manufacturers engineering specifications that wind classification N2 had been used in the computer system, and the builder simply assumed that this was correct.  This was not correct however, because the wind classification was N3.
[84]	This means that the design was defective building work in this respect.
[85]	In the reconsideration decision the QBCC put this in a slightly different way, saying that the builder is responsible to ensure that the construction suits the wind classification.  This is a reference to the National Construction Code which requires that constructions should be to an adequate wind load.
[86]	As provided in the direction to rectify itself both the patio and the car port needed to be redesigned to suit the correct wind classification.
[87]	As for original complaint items 7 and 13 which are about who should approve and/or certify the new design, such things might be in the direction to rectify if appropriate, but I cannot see that they are appropriately included in a decision about whether to issue a direction to rectify because of defective building work.  
[88]	In the circumstances it is right to find that the construction was not properly designed to suit the correct wind classification for the site and that this was defective building work.  This is what the reconsideration decision did.  It also included a finding of defective building work in respect of items 4, 9, 10 and 11 which are also clearly correct.  Having regard to the builder’s responsibility here, it is not unfair to the builder to issue a direction to rectify in respect of these things and it is not futile to do so having regard to the considerations above (about remedial work having been done by the time of the hearing).
Certification matters
[89]	The homeowners say that unless directed to do so, the builder ‘will not provide the certificates required to obtain insurance for the patio and carport and thus enable full insurance on the home’.  They also say that there were irregularities in the forms 15, 16 and 21 which have not been acknowledged by the builder, and say that a certifier did not attend the site for a final inspection as required in order to issue the form 21, which was issued without due care and failing to act in the public interest. 
[90]	Two of the items of the original complaint, that is items 8 and 12, concern council approval and certification respectively.  The QBCC say that neither of these items are building work but the homeowners contend that they are because building work includes contract administration, which includes arranging for certificates, including certificates from local government to be issued.  
[91]	Although it is true that building work includes contract administration the difficulty is that a review of a decision to issue a direction to rectify is about that decision, not about precisely what should be in the direction to rectify.  Hence the tribunal is unable to instruct the builder or a certifier how to deal with matters of certification when conducting these reviews, nor can the tribunal require the QBCC to do this.  Such matters are outside the jurisdiction of the tribunal in reviews such as this.
Slope of the roof being in the wrong direction
[92]	This is item 2 of the original complaint but also mentioned in item 17.  The homeowners say that the roof of the patio should slope away from the house not towards it (original complaint item 2).  The QBCC building inspector found the slope of the roof to be approximately 1.5%, and that the approved plans showed that the roof sloped towards the house.
[93]	In the dispute schedule the homeowners say that this design differed from the approved plans, and in final submissions they say that the design was defective, and that a competent builder would take into account various factors, and if an architect had been engaged as (as they submit) was required by the contract, then this would have happened.
[94]	I am satisfied on the evidence that there is nothing wrong in principle with the arrangement whereby the roof of the patio slopes towards the house.  This is therefore not an item of defective work and the QBCC made the correct decision not to issue a direction to rectify with respect to this item.
Water pooling in the gutters
[95]	This is item 14 in the original complaint, but also mentioned in item 17.  A building inspector and a plumber conducted a water test on 15 September 2020 and water was found to be pooling in the gutters to a depth of approximately 6mm.  The QBCC say that this did not show defective work because it was below the tolerance of 10mm generally regarded as satisfactory in the QBCC Standards and Tolerances Guide.  
[96]	In final submissions, the homeowners point out that the roof inspection done in 2018 found that the guttering was holding 10mm of water suggesting incorrect installation.  Also they say that even at 6mm such pooling is evidence of poor construction because the gutters should drain away completely.  They point out that it would cause a problem with mosquitoes and mildew and that the QBCC Standards and Tolerances Guide does not necessarily have to be followed, and that the evidence was unsatisfactory because the plumber who attended should have provided a report.
[97]	Sometime in about 2020, to satisfy their home insurers the homeowners engaged a plumber to deal with the pooling in the gutters by installing ‘overflow slots’ within the vertical face of the eaves gutter.
[98]	I am satisfied on the evidence that the pooling was not defective building work and the decision not to issue a direction to rectify in respect of this item was correct.
Water from patio backing up in patio ceiling with wiring needing repairs
[99]	This is original complaint item 1 but is also mentioned in item 17.  A building inspector and a plumber conducted a water test on 15 September 2020 and there was no visible sign of this problem and this was confirmed by the use of a thermal camera.  
[100]	In final submissions, the homeowners say that the test was insufficient because rainfall could be more severe and the test was done only over one section of one panel.  Also a test done in 2018 noted high moisture as noted by the use of a thermal camera.  The homeowners say that the gutter was modified as advised in 2019.
[101]	In reply, the builder says that the only time any such water backed up on the patio roof was when there was debris on the roof.
[102]	Although I can see a difference between the test carried out in September 2020 and a severe rain deluge as the homeowners say, the difficulty is that the test did not disclose defective building work and I am satisfied that the decision not to issue a direction to rectify in respect of this item was correct.
Gutter should be protected from falling leaves by a guard
[103]	This is a reference to the gutters to the carport roof and is original item of complaint 16.  The homeowners’ case is that the builder was aware of the trees in the vicinity and should have included guards on that basis.  This is repeated in final submissions.
[104]	Although usually such guards can be retrofitted the homeowners told me in the hearing that the type of gutters which were fitted did not permit this.
[105]	The difficulty with this complaint is that the homeowners approved the design without gutter guards, and it cannot be the case that the builder could in some way become contractually obliged to fit them.  It may well be the case that if consideration had been given to whether gutter guards were needed they could have been added to the contract, but this did not happen.  This means that it cannot be said that the building work was incomplete or defective.
[106]	In the circumstances I think the decision not to issue a direction to rectify in respect of this item was correct.
Gutters and stormwater pipes were not connected to the stormwater tank, and the rain and water disposal from the new construction is ‘totally inadequate’
[107]	A formal proposal which may have become a contractual document provided that the gutters and stormwater pipes should feed into the stormwater tank.  This complaint is that this did not happen and that the rainwater disposal generally is totally inadequate (original complaint item 3).
[108]	Various different arrangements were tried, and in their final submissions, the homeowners review the history of the matter.  The builder says that the various possibilities were discussed with the homeowners.
[109]	As ultimately constructed, the rainwater discharged into one or more grates in the ground.  Although the homeowners say that water splashes out of the grates, the building inspectors found the arrangement to be satisfactory because they found there was no ponding near the dwelling or the posts, and so they found that there was no defective building work.
[110]	It is possible that the builder was contractually obliged to arrange for the water to be dispersed into the stormwater tank but any failure to do this could not be regarded as incomplete work because a method of water dispersal was provided.  It cannot be regarded as defective building work either, because the rainwater disposal method as constructed was satisfactory.  
[111]	In the circumstances I think the decision not to issue a direction to rectify in respect of this item was correct.
Pitch at the lower section of the patio roof was too shallow so that water collects on the surface
[112]	This is original complaint item 15.  Although the building inspector found that this was defective building work, being non-structural a direction to rectify would normally only be issued within 12 months of the work being done and the decision was made that due to the length of time which had passed since completion of the work and in accordance with the Rectification of Building Work Policy and because of the relatively minor nature of the defect, a direction to rectify would not be issued in respect of this defect.
[113]	In final submissions, the homeowners explain that they did complain to the builder about this issue and that the Rectification of Building Work Policy should only be a guideline.  
[114]	In reply, the builder blames a build up of debris.  The builder says that when reconstructing in accordance with the direction to rectify, an additional beam was added to create extra fall.
[115]	The decision not to issue a direction to rectify was the correct one when considering the policy of the QBCC.  Provided the policy is not construed inconsistently with the QBCC Act, the tribunal should apply such a policy.  I think the decision not to issue a direction to rectify in respect of this item was correct. 
Wrong contract
[116]	The homeowners say that the builder used the wrong standard form contract for the work and the contract which was used was more onerous than the one which should have been used.
[117]	This is not something which is within the jurisdiction of the tribunal in this review.
Changes to standard form contracts
[118]	The homeowners ask in their application for review that certain changes are made to standard building contracts and in insurance contracts.  
[119]	This is not within the jurisdiction of the tribunal.
Money claim
[120]	The homeowners claim ‘solatium .. for money to replace the patio with one that is fit for the purpose, the costs of ensuring the house structure can support the carport and connecting the downpipes to the stormwater as per the building approval requirements and the signed contract and the cost of the building approval and associated certificates’.
[121]	This claim is not within the jurisdiction of the tribunal in review proceedings.
Time spent in preparing submissions
[122]	This is the remaining part of item 17.  In so far as item 17 complains about the time that the homeowners have spent in preparing submissions, the QBCC could not deal with this in its decision about whether to issue a direction to rectify and hence the tribunal has no jurisdiction about this either when considering the review.
[123]	In final submissions the homeowners ask for $352 for the ‘application fee’.  This is an application for costs.  This is not properly made in final submissions.  It would need a separate application made within GAR274-21.
Other complaints about the builder
[124]	The homeowners say that the builder gained an unfair advantage over its competitors by making false statements.  And they say that the builder failed to keep a safe system of work on site.
[125]	This is not within the jurisdiction of the tribunal in review proceedings.
Builder to be held accountable
[126]	The homeowners ask in their application for review that the builder is held accountable for breaches of the Building Act and for the builder to be investigated to see whether it should hold a licence.  The homeowners ask for large fines to be imposed on the builder for false statements in the contractual documents.  
[127]	This is similar to a matter raised in the homeowners’ final submissions in the review.  In those submissions the homeowners refer to their application to be joined in another review application brought by the builder, in which they say that the QBCC has failed to ‘consider the culpability of (the builder) and the QBCC licensed associates’ for failure to exercise proper care and skill.  A point is made about the nominee of the builder operating through another company.  
[128]	These matters are not within the jurisdiction of the tribunal on this review.
Denial of home warranty insurance
[129]	The homeowners say that they were denied home warranty insurance for the work.  This also seems to be a complaint made in final submissions.
[130]	This is not within the tribunal’s jurisdiction in this review.
Matters critical of the QBCC
[131]	The homeowners criticise the QBCC for placing too much weight on the validity of the forms presented by the builder and failing to give appropriate weight to the consumer protection aims of the QBCC Act.
[132]	The homeowners’ final submissions in this review refer to certain complaints made in another document about the QBCC.  There are references to alleged political interference, misunderstanding of the role of Moreton Bay Council with respect to building applications and the forms issued by private certifiers, and that the QBCC should have sent an engineer to check the structure without the need to involve the tribunal, whose resources (it is said) could be better utilised.
[133]	The homeowners’ final submissions in this review seem to be critical of the way the QBCC handled the complaint and thereby causing more time to be spend by the homeowners.
[134]	Except if costs become an issue, all these matters are irrelevant to the issues to be decided in this review.  Although the tribunal is able to make recommendations about the policies, practices and procedures applying to reviewable decisions of the kind in this review, prior to the hearing the homeowners’ criticisms were not developed to such an extent that they were dealt with in the hearing, and it is too late to apply detail to the criticisms in final submissions.
Conclusion
[135]	Although I have disagreed with some of the reasons expressed in the reconsideration decision, the review is not about those reasons.  I am of the view that the decision to issue a direction to rectify the defective building work described in the reconsideration decision should be confirmed.