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
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
Builders should check that they have been given 28 days from
the date of receiving a direction to rectify to fix any
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.
Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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