QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Jobling t/as SAJ Constructions v Queensland Building and Construction Commission and Anor [2021] QCAT 219	
PARTIES:	Simon Jobling trading as SAJ COnstructions	
	(applicant)	
	v	
	Queensland building and contruction commission	
	(first respondent)	
	HICKEY ENTERPRISES PTY LTD TRADING AS SAFEGUARD PEST CONTROL	
	(second respondent)	
APPLICATION NO/S:	GAR178-19	
MATTER TYPE:	General administrative review matters	
DELIVERED ON:	22 June 2021	
HEARING DATE:	29 April 2021	
HEARD AT:	Brisbane	
DECISION OF:	Member McDonnell	
ORDERS:	The decision of the Queensland Building and Construction Commission of 15 April 2019 to issue a Direction to Rectify 0104350 to Simon Jobling trading as SAJ Constructions is confirmed.	
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where complaint by owner that building work is defective – whether work is defective – whether unfair in circumstances to require rectification
Queensland Building and Construction Commission Act 1991 (Qld) s 3, s 7, s 71I, s 72, s 86, s 87, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 
Ramke Constructions Pty Ltd v QBSA (No 2) [2013] QCAT 575
Walker v Queensland Building and Construction Commission [2014] QCAT 228	
APPEARANCES & REPRESENTATION:		
Applicant:	Self-represented	
First Respondent:	Robinson Locke Litigation Lawyers	
Second Respondent:	Self-represented	
REASONS FOR DECISION
[1]	Simon Jobling trading as SAJ Constructions (‘Jobling’) applied to the Tribunal for a review of the decision made on 15 April 2019 by the Queensland Building and Construction Commission (‘QBCC’) on internal review, to issue a direction to rectify to Jobling pursuant to s 72 (2) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), in respect of defective building works at a property in Maroochydore (‘DTR’).
[2]	The DTR relates to building work connected with the termite management system installed at the property, which is said to be defective because the laying of the driveway has formed a bridging point, breaching the barrier, and there is an insufficient visual inspection zone. 
[3]	Hickey Enterprises Pty Ltd trading as Safeguard Pest Control (‘Hickey’) was joined to the proceedings as he was Jobling’s pest control subcontractor.
[4]	Jobling contends that if there is defective building work the DTR should not be directed to him but should be directed to Hickey.
Statutory Framework 
[5]	A person affected by a reviewable decision of the QBCC may apply to the Tribunal for a review of the decision. A reviewable decision includes a decision to give a direction to rectify. 
[6]	A person who is given notice of a reviewable decision may apply for internal review of that decision. That decision then becomes the reviewable decision.
[7]	One of the objects of the QBCC Act is to ‘provide remedies for defective building work’. Part 6 of the QBCC Act seeks to achieve that object in a number of ways. In particular, s 72 of the QBCC Act allows the QBCC to issue a direction to rectify defective building work to the person who carried it out. 
[8]	In undertaking this review, the Tribunal is to make the ‘correct and preferable’ decision by way of a fresh hearing on the merits. In making the decision, the Tribunal stands in the shoes of the QBCC and in exercising its discretion is to take into account relevant policies. 
[9]	The ‘Rectification of Defective Building Work Policy’ commenced operation on 14 October 2014. It provides that it is a policy of the QBCC that a building contractor who carries out defective building work should be required to rectify that work. I am satisfied that regard should be had to the Policy in this review. 
[10]	Also brought to my attention was the ‘Accountability for Subcontractor Defects Procedure’, issued by the QBCC as an internal procedure document, following consultation with building industry associations. This document states that the QBCC will ensure that subcontractors are held accountable for defective building work they perform, but that principal contractors remain responsible for properly supervising all building work completed under a contract. It is not inconsistent with the Policy. Unlike the Policy, this document has not been approved by regulation. I do not find it necessary to consider the status or weight of this document in undertaking this review. 
[11]	On review, the Tribunal may confirm or amend the decision, set the decision aside and substitute its own decision, or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.
[12]	In this application for review of a decision to issue a direction to rectify under s 72 of the QBCC Act, the following matters must be determined by the Tribunal:
(a)	Is there defective building work;
(b)	Is the builder responsible for the defective building work; and
(c)	In all the circumstances, whether it is unfair to direct the builder to rectify the building work.
Background
[13]	On or about 8 August 2016 Jobling entered into a contract with the homeowners for the construction of three new units. 
[14]	Work commenced on 12 September 2016. Work was completed on 31 May 2017. The Community Management Statement for the scheme was lodged on 28 June 2017.
[15]	The homeowner first noticed defects on 8 October 2018 and submitted a complaint to the QBCC with details of alleged defective work at the property on 11 March 2019. 
[16]	In the course of the investigation by QBCC, it became apparent that there were two Form 16s bearing the same date but indicating different termite treatment and two Certificates of Subterranean Termite Treatment which differed in that they attached different drawings indicating the location of termite treatment. One showed treatment occurred in the location of the entry to the garage and the other showed no treatment in that location. 
[17]	Following an inspection of the site, Mr Blair Lowrie, a building inspector employed by the QBCC, prepared an initial inspection report on 6 February 2019. He said, in identifying the item as defective:
(a)	Relevant Technical Manual – AS 3660.1 Part 3.5, 3.6 and 4.4;
(b)	Visual inspection zone in the ‘Untreated Areas’ does not achieve sufficient slab edge exposure;
(c)	the visual inspection zone of 75mm must be maintained or a suitable perimeter physical or chemical barrier shall be installed; and 
(d)	the driveway surface has ‘bridged’ to the physical inspection zone.
[18]	The QBCC considered that there was defective building work and on 7 February 2019 the QBCC issued a direction to rectify to Jobling.
[19]	On 18 February 2019, Hickey confirmed to QBCC that the garage joints had not received termite protection by his firm.
[20]	On 17 March 2019, Jobling lodged an internal review application in respect of the direction to rectify. 
[21]	On 15 April 2019, the internal review decision was made to issue a DTR to Jobling and Jobling was advised of the decision by letter dated 15 April 2019.
[22]	On 16 April 2019, the QBCC issued the DTR to Jobling requiring rectification of: 
Defects associated with the building work in connection with the termite management system in the location where the concrete driveway abuts the building in that:
•	a visual inspection zone of 75mm must be maintained in the ‘Untreated Areas’ or a suitable perimeter physical or chemical barrier shall be installed in accordance with AS3660.1 Termite Management Part 1 – New building work’.
[23]	Approval was sought and granted for more time to comply with the DTR. The work was to be completed by 2 June 2019. Jobling did not comply with the DTR.
[24]	On 9 May 2019 Jobling lodged an application to review a decision with the Tribunal. 
[25]	I am advised that the rectification works have been completed.
Evidence of Jobling
[26]	Mr Jobling gave evidence on behalf of Jobling. He accepted that he had control of the site, all subcontractors engaged and the scope of work for each subcontractor at the site. He engaged subcontractors to undertake termite control and concrete laying. 
[27]	Mr Jobling said he engaged Hickey, a QBCC licensed pest control expert, to install an appropriate termite barrier to the property, and that he relied upon Hickey to undertake the work he had been engaged to do. A combination of a physical and a visual system of termite management was proposed at this site. In particular, a visual inspection zone was intended in the location of the entry to the garage. 
[28]	Mr Jobling explained that there were generally two stages at which the pest control expert is engaged at a site, firstly after the physical barrier is laid to confirm that any slab penetrations are sealed and later to confirm the perimeter membrane. A Form 16 would be provided issued by the pest control expert setting out the work done at each stage. 
[29]	At this site the main concrete slab was laid and sometime later the concrete driveway was laid. Mr Jobling did not dispute that he arranged for Hickey to attend at the site on one occasion only and did not arrange for him to attend the site to effect termite treatment or certification after the driveway slab was poured.
[30]	The process Mr Jobling described indicated that no physical or chemical termite treatment would ordinarily be in place in the location of the driveway because there would be a visual inspection zone relied upon as the termite management system. 
[31]	However, he said that an adequate visual inspection zone was not required on this occasion as the Form 16 and Certificate of Subterranean Termite Treatment (‘Certificate’) indicated that a physical barrier was in place at that location. 
[32]	In explaining this Mr Jobling took me to the drawing on p109 of Exhibit 3, which he said showed termite treatment had been effected in the location of the entry to the garages. I do not accept that this diagram shows termite treatment installed at this location. Indeed, it shows no treatment was applied in that location. 
[33]	Later Mr Jobling said that there was no treatment in the location of the driveway and that it was not needed because there was to be a visual inspection zone. I found Mr Jobling’s evidence in this respect difficult to follow. 
[34]	Mr Jobling said he received only one Form 16 and one Certificate from Hickey. He could not explain why there were two Form 16s of the same date and two Certificates in relation to the work or why they differed, except to suggest that the plans were mirrored. It was clear to me that the drawings were not mirrored. They show different treatment areas. He said he provided the Form 16 and Certificate he received from Hickey to the QBCC in the course of its investigation. I accept that this Certificate indicates termite treatment across the driveway entry. 
[35]	He said he did not see the Form 16 and Certificate which the QBCC obtained from Jobling, showing no treatment in the area of the driveway, until sometime in the course of the QBCC’s investigation. 
[36]	Mr Jobling accepted that physical termite treatment or a sufficient visual inspection zone was required in the location but disputed that he was responsible.
[37]	Mr Jobling said he was not qualified to say whether there was defective building work. However, he said that if there was defective building work, in the circumstances, it was unfair to issue the DTR to him and asked the Tribunal to issue the DTR to Hickey as the person responsible for the defective work. 
[38]	Mr Jobling further said that he believed that the homeowners had since failed to arrange for annual inspections of the termite management system and so the warranty will have lapsed. QBCC submitted that this is not relevant to the issue of whether the building work is defective, and I accept that. 
Evidence of Hickey
[39]	Mr Hickey gave evidence on behalf of Hickey. He explained that generally with a site such as this there would be two occasions on which he would be involved – once for the perimeter physical barrier and penetrations and then the second time to check the garage joints once driveway slab is installed. He explained that this second visit is necessary as it can be difficult to maintain the requisite 75 mm visual inspection zone in the process of pouring the concrete for the driveway. He explained that the builder usually contacts the pest control expert to arrange for the second stage work as the pest expert is not aware of or in control of the timing of the construction. He said that in his experience it is not uncommon for different pest control experts to be used for each stage. 
[40]	He said that at this site he installed a physical barrier and checked penetrations but did not install any treatment in the location of the driveway. Mr Hickey said that he was the only technician from his firm to attend this site. He said he was not contacted by Jobling to undertake any further pest control work at the site after his initial work. 
[41]	Mr Hickey said he returned to the site after handover to the owners to talk with them about termite protection. He prepared a report for them dated 22 September 2017. In this report he identified the bridging which had occurred in the driveway. He told the Tribunal the bridging occurred as a result of the construction of the driveway slab and that this bridging allows termites to enter.
[42]	Mr Hickey could not explain why there were two Form 16s both bearing the same date and signed by him. Nor could he explain why there were two different plans attached to the Certificates of Subterranean Termite Treatment for the site. He said he completed one Form 16 and one plan. 
[43]	When taken to the Form 16 at p181 of Exhibit 3 and the drawing at p184 he said he did not generally use an architectural plan as used in that drawing as he did not have access to that type of information at the site.
[44]	He said he prepared the Form 16 and Certificate contained at p 190-195 of Exhibit 3. In particular, he explained that the wording contained in the Form 16 at p190 was his standard default wording including exclusion, and the hand drawn site map at p193 with noughts and crosses showing treated perimeter and penetrations was his usual type of drawing for these certificates as he hand draws the site plan at site.
What does the QBCC say?
[45]	The QBCC initially issued the DTR to Jobling relying upon the report of Mr Lowrie. Mr Sparks was the internal review officer. He was unable to resolve the issue of the conflicting submissions about the Form 16s and Certificates on the material before him. Relying upon Mr Lowrie’s report, his decision on internal review was to issue the DTR to Jobling. 
The Evidential Onus
[46]	In these review proceedings Jobling has the evidential onus to provide appropriate material to support the decision it seeks:
Generally there is no onus. However, practically, a party will want to adduce evidence which supports the party’s case, since the Tribunal can only make its decision on the material before it. In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it. 
[47]	Jobling adduced no independent expert evidence to support its position or to counter the QBCC’s material. Mr Jobling’s evidence is not independent or objective. 
[48]	The QBCC’s role is to administer the QBCC Act and to further its objects. Mr Lowrie, an employee of the QBCC, prepared a report in furtherance of the objects of the QBCC Act. In his role, he has no personal interest in the outcome of this review. 
Is there defective building work?
[49]	The Tribunal is required to examine whether the work is building work. Building work is defined in the QBCC Act. There is no dispute between the parties that the work is building work.
[50]	Defective building work is defined in the QBCC Act to include building work which is faulty or unsatisfactory. 
[51]	Mr Hickey said he did not install termite treatment in the location of the driveway. Mr Jobling said he would not normally expect termite treatment in this location because a visual inspection zone would be relied upon, but that the plan he received showed treatment in this area. Mr Hickey said that due to bridging caused by the installation of the driveway slab there is an insufficient visual inspection zone. Mr Lowrie, in his report, opined that there is an insufficient visual barrier in the untreated zone and formed the view that this is defective building work. Jobling did not challenge this evidence. 
[52]	There was a requirement to install termite treatment at the property. I accept Mr Hickey’s evidence that he did not install termite treatment in this location. I accept the evidence of Mr Lowrie and Mr Hickey that bridging has occurred such that there is now an insufficient visual inspection zone in this location. Accordingly, I am satisfied that there is no adequate termite treatment in the location.
[53]	I am satisfied that this is defective building work.
Is the builder responsible?
[54]	It is not in dispute that Mr Jobling was the building contractor for the construction of the units for the homeowners. As the contractor, he is responsible for the work on the site, including the work by the subcontractors, and he accepted this. The evidence is that Jobling engaged Hickey to undertake termite treatment at the property.
[55]	I accept that work at the site, including work by subcontractors, was undertaken at Mr Jobling’s direction and that he is responsible for supervising such work and for the work performed by the subcontractors.
[56]	Accordingly, I find that Jobling is responsible for carrying out the building work. 
Should Jobling be Directed to Rectify?
[57]	Although the work has since been rectified, it is in the public interest for the direction to rectify to remain on the register.
[58]	Mr Jobling said he relied upon the Form 16 and Certificate showing that treatment had occurred in the area of the driveway, but it was his evidence that he would not normally expect this area to be treated. Rather, an adequate visual inspection zone would be in effect. He focused on the fact that he retained a subcontractor to undertake the termite treatment on the site and as the specialist that expert should be responsible for the work he undertook, and so Mr Jobling should not be responsible. 
[59]	There is conflicting evidence about which is the correct Form 16 and Certificate. Mr Hickey was consistent and very clear about what work he undertook on the site. Mr Hickey said he did not install treatment in this location and that he prepared a drawing for the Certificate consistent with this. He denied having prepared the other drawing. Further he said he did not undertake pest control work on the site after the driveway slab was poured. There was no evidence about who, if anyone, undertook this work. I accept the evidence of Mr Hickey in relation to the work he undertook and the Form 16 and Certificate which he submitted.
[60]	Accordingly, I find there is no basis for issuing a direction to rectify to Hickey.
[61]	I am satisfied that the correct and preferable decision is that the decision of the Queensland Building and Construction Commission dated 15 April 2019 to issue Direction to Rectify no. 0104350 is confirmed.