Are you a property owner in Queensland with defective building work?
If so, you may be quite frustrated and find it difficult to manage your situation without any background knowledge or technical understanding.
When you hire a builder, you will generally expect good quality work but, unfortunately, this is not always the case.
Builders, just like people in any other profession, are capable of wasting the time and money of their clients by simply not bothering or not having the skill set (or even the correct license) to do the job they are paid for.
This can be extremely frustrating for you, especially if the poor quality of the work makes it impossible or unsafe to inhabit the property or use it otherwise.
In this article, our building and construction disputes lawyers will discuss the basics of defective building work and will help to expand your knowledge on the topic so that you can make informed, effective action for it to be resolved.
What is Building Work?
The term "building work" is defined in schedule 2 of the Queensland Building and Construction Commission Act 1991 (Qld) to mean:
(a) the erection or construction of a building; or
(b) the renovation, alteration, extension, improvement or repair of a building; or
(c) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with 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
(g) fire protection work; or
(ga) mechanical services work; or
(h) carrying out site testing and classification in preparation for the erection or construction of a building on the site; or
(i) carrying out a completed building inspection; or
(j) the inspection or investigation of a building, and the provision of advice or a report, for the following-
(i) termite management systems for the building;
(ii) termite infestation in the building; but does not include work of a kind excluded by regulation from the ambit of this definition.
What is not Building Work?
The work that is not building work, as excluded in the QBCC Act, is at Schedule 1 of the Queensland Building and Construction Commission Regulation 2018 (Qld), which we have extracted into the table below:
|Work for a farm building or farm fence||Work of a value of $3,300 or less||Giving of free advice by building industry organisations|
|Work performed by architects||Work performed by engineers||Work performed by licensed surveyors|
|Work performed by the Commonwealth or its agencies||Work performed by the State or its agencies||Work performed by local governments|
|Work performed by charities or community organisations||Work for water reticulation systems, sewerage systems or stormwater drains||Work for public utility easements|
|Work on busways and tunnels||Work on roads and tunnels||Work on bikeways and footpaths|
|Work on public bridges||Work for railway tracks||Work for airport runways|
|Work on harbours, wharfs and other maritime structures||Electrical work||Work for dams|
|Work for communications for broadcasting||Work for unsupported signs||Work for supporting structures for signs|
|Erecting scaffolding||Installation of manufacturing equipment||Construction work in mining|
|Work for curtains, blinds and internal window shutters||Laying carpets, floating floors or vinyl||Work for monuments, fountains and other works of art|
|Earthmoving and excavating||Particular work performed personally by owners of land||Certification work by building certifiers|
|Particular work performed by registered valuers||Laying asphalt or bitumen||Work done under the Work Health and Safety Regulation|
|Work for assessment of insurance claims||Work performed by locksmiths||Preparing or installing insulation|
|Interior design||Assessment of energy efficiency of buildings||Inspecting or testing emergency lighting systems|
|Installation of insect screens||Line marking||Work performed by fire safety advisers|
|Pool safety inspections by pool safety inspectors||Work for strand wire fences||Installation of solar hot water systems|
|Installation of photovoltaic solar panels||Laying wet pour rubber||Work for off-site manufacture of roof trusses or wall frames|
So, if the work on your property relates to "building work" and it is not expressly excluded by the QBCC Regulations, then you may qualify if the work is defective.
But what is defective building work?
What is Defective Building Work?
Defective building work is work that is unsatisfactory, flawed, subpar, and/or faulty.
The term "defective" is defined in Schedule 2 to the Queensland Building and Construction Commission Act 1991 (Qld) ("QBCC Act") and includes 'faulty or unsatisfactory' building work.
For example, it consists of building work that does not comply with the requirements of the Australian Standard, and/or the Building Act 1975, and/or the Building Code of Australia; or involves the use of a manufactured object that has been constructed, installed, or used in a manner inconsistent with the manufacturer's specifications.
There are two (2) types of defective building work in Queensland:
- Structural defective building work; and
- Non-structural defective building work.
Structural Defective Building Work?
Structural defective building work means defective building work which has an impact on the building's structural performance; and/or has an impact on the health or safety of people who live in or use a building; and/or impairs a structure's ability to perform its intended function; and/or allows water to enter a building.
In the QBCC Rectification of Building Work Policy, 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:
- adversely affects the structural performance of a building;
- adversely affects the health or safety of persons residing in or occupying a building;
- adversely affects the functional use of a building;
- allows water penetration into a building.
What are structural defects examples?
Typical examples of structural defective building work include:
- damage and cracks in slabs and floors of the building; and/or
- damage and cracks in the foundations of the building; and/or
- damage and cracks in walls of the building.
Non-Structural Defective Building Work?
Non-structural defective building work means defective building work, which is flawed or subpar for any reason, or if it does not satisfy the reasonable quality of construction or finish expected of a competent holder of a contractor's licence of the appropriate class.
In the QBCC Rectification of Building Work Policy, 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:
- 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
- it has caused a settling in period defect in a new building.
What are non-structural defects examples?
Typical examples of non-structural defective building work include:
- Any dents in the walls or finishes.
- General deterioration of the works.
- Minor corrosion with the works.
- Spalling and degradation of concrete.
- Small blemishes to the works.
- Failing gutters and roof coverings.
- Thin cracks or minor settling-in cracks; and
- Uneven finishes and non-level finishes.
Types of Defective Building Work - Examples
A list of typical defective building work in Queensland that we have seen at Stonegate Legal includes (inter alia):
- Any apparent stains, mortar streaks, or cleaning-related harm.
- Any cracks, folds, splits, dents, open seams between panels, or other alterations to the wall cladding that are readily apparent.
- Any discernible undulations or irregularities in roof tiles.
- Any stains, folds, splits, dents, gaps between panels, cracks, or other distortions in the roof cladding that are readily apparent.
- Clearly visible gaps greater than 1 mm between mouldings or between mouldings and other fixtures.
- Concrete cracks of categories 3 and 4 and failures of the slab and footing.
- Cracks and flaws in cornices, other sheeting, and plasterboard sheeting.
- Damages to fixtures and appliances provided as part of the construction contract.
- Deviations from the concrete pool's documented set out.
- External coatings applied on a light substrate with visible fractures or exposed seams, or if they allow water to enter.
- Inadequate garage, carport, veranda, deck, and patio measurements.
- Inadequate room sizes in the bedrooms, dining rooms, living and family rooms, study areas, passageways, and stairways.
- Internal rendered surfaces on masonry substrate with category 3 and 4 fissures.
- Masonry wall voids, holes, or category 2 level cracks.
- Natural stone, marble, or materials similar to these that have obvious cracking, displacement, pitting, or other flaws.
- Splits in decking wood that reach the end or side edges of the wood.
- Surface cracks on rendered exterior surfaces.
- Visible cracks in the shower stall, its parts, and its bases, screens, and glass.
- Visible cracks larger than 1 mm in mouldings and/or other architectural details and joins.
- Visible imperfections include paint runs, paint sags, wrinkles, dust, bare or starving painted areas, colour variations, surface fissures, irregular and coarse brush markings, sanding marks, blisters, homogeneity of gloss level, and other imperfections.
- Visible nicks, chips, cracks, or other flaws in the mirrors and glazing.
- Vulnerable holes and any other depressions in stained or painted wood that are not filled in.
There could be other types of defects in building work. For more defects, view the QCBB Standards and Tolerance Guide.
Tier 1 Defective Work
In the most serious of cases, the builder may have committed tier 1 defective work.
Section 67AB defines tier 1 defective work to be:
grossly defective building work that-
(a) falls below the standard reasonably expected of a licensed contractor for the type of building work; and
(i) adversely affects the structural performance of a building to the extent that a person could not reasonably be expected to use the building for the purpose for which it was, or is being, erected or constructed; or
(ii) is likely to cause the death of, or grievous bodily harm to, a person.
If the defective work is tier 1 defective work, then ensure that you are safe, and contact the QBCC immediately.
What Does the Law Say about Defective Building Work?
Defective building work is discussed in two official documents or legislation issued by the government. These are:
Further, the case law in Queensland has also given us some helpful insight. For example, in Interlink Developments Pty Ltd v Queensland Building and Construction Commission  QCAT 245, the Tribunal reiterated the above by saying:
 The terms "building", "building work' and "defective" are defined in Schedule 2 of the QBCC Act .  . Defective building work is defined as building work that is faulty or unsatisfactory and includes, for example, work that does not comply with the Building Act 1975 (Qld), Building Code of Australia or an applicable Australian Standard.
In Whalley v Queensland Building and Construction Commission  QCAT 15, the tribunal again referred to the above as a guide for definitions, they said:
The licensee has engaged in category 1 defective building work as defined in the QBCC Rectification of Building Works Policy June 2010.
Statutory Defect Liability Period
There is also a statutory defect liability period which applies to defective works.
The date of practical completion marks the start of the defect liability period, which then lasts for the amount of time stipulated in your contract.
Your builder has a 12-month defect liability period after you take possession of your new house during which they must fix any defective work.
You must let them know about any defects in writing.
How to Identify if Building Work is Defective
The QBCC has issued a guide on how to identify defective building work. The process is simply:
- Find out and record when the building work was finished; then
- Identify the relevant pages in the QCBB Standards and Tolerance Guide for the construction work category.
- Find the item in the booklet section of the QCBB Standards and Tolerance Guide for the appropriate category.
The QBCC has stated that you should follow the above formula to identify defective building work, because you need to:
- Make sure you are aware of the work's completion date because you will need it to use the instructions.
- To determine the category for each disputed item, consult the list of "Contents" on page 5, and then go to that chapter in the manual.
- Find the topic pertaining to your particular building task by browsing the section for the applicable kind of work.
Once you do this for each piece of work, you will uncover and identify if the work is defective. As easy as it seems to identify damage to your house or property, some damage can be internal or not visible from the occupied house.
It is, however, important that you can identify defective building work as opposed to simple wear and tear and try to catch it as early on as possible to prevent the statute of limitations from expiring on your matter.
For starters, any recent work that has been done on your building should be inspected closely, even if you just do it yourself. You can simply thoroughly search the main structures built or hire a professional to ensure that no damage or faulty work has taken place.
What are your rights when your home or building has a defect?
Once you have correctly identified the defective building work, there are a few things that you can do to get the builder to rectify the defects, including:
- Speak with your builder or contractor.
- Lodge a complaint with the QBCC.
- Lodge a building & construction claim with QCAT.
- Terminate the building contract for substantial breach and sue the builder.
We will explain these in more detail below.
Speak with your Builder or Contractor
Once you become aware that the work is defective or faulty, the first step is to simply contact your builder and inform them about the issue. It is unwise to go into this interaction with aggression or ill-intent as it could have been an honest mistake that, provided you don't yell and threaten them, they would be willing to fix free of charge.
If this is not the case, if the Contract allows for it then you may wish to try alternative dispute resolution or mediation where you can discuss the issue in a professional environment.
If your contractor continues to refuse to cooperate or doesn't respond to your attempts to contact them, you may want to lodge a complaint with the QBCC.
Lodge a Complaint with the QBCC
If your builder disagrees with your assessment of defective building work, then you can file a complaint with the QBCC. You can click here as a good starting point.
The power for this is given by section 72(1) and 72(2) of the QBCC Act which states:
(1) This section applies if the commission is of the opinion
(a) building work is defective or incomplete; or
(b) consequential damage has been caused by, or as a consequence of, carrying out building work.
(2) The commission may direct the person who carried out the building work to do the following within the period stated in the direction-
(a) for building work that is defective or incomplete-rectify the building work;
(b) for consequential damage-remedy the damage.
There are a few things you should think about before contacting the QBCC with a defective work complaint, including:
- Check the conditions of your contract or speak to a lawyer.
- Verify and ensure that you qualify (read all of the above).
- Prepare to welcome your contractor back to the jobsite to rectify the work.
Once you submit your complaint, the QBCC will analyse your case to determine whether they can assist. If they can assist, then they will give the builder a rectification notice.
Where to lodge a complaint about defective building work?
You have the option to submit a complaint with the Queensland Building and Construction Commission if you are having problems with unfinished or defective building work that you are unable to settle with the contractor.
You can click here as a good starting point - Make a defective work complaint.
The QBCC complaint process tries to resolve your dispute as quickly and easily for you as they can.
If the QBCC are unable to assist you with your defective works complaint, or you do not like the assessment of the defective works complaint, then the QBCC give you a referral letter allowing you to apply to QCAT for their assistance.
Lodge a Building & Construction Claim with QCAT
The QBCC decision on defective works is a reviewable decision under the QBCC Act. Therefore, you can apply for external review with QCAT.
Section 86(1)(e) of the QBCC Act states:
(1) Each of the following decisions of the commission under
this Act is a "reviewable decision"
(e) a decision to give a direction to rectify or remedy or not to give the direction.
Therefore, within 28 days after being given the unfavourable decision by QBCC, or the referral letter to QCAT, you can apply for external review the QBCC decision.
Terminate the Building Contract for Substantial Breach and sue the Builder
If the defective works are substantial breaches of the building contract, or repudiation of the building contract, then you may also be able to terminate the building contract.
A substantial breach of the building contract may occur when the builder:
- Fails to have an active license in the appropriate class to perform the works.
- Fails to have or maintain the required insurance under the contract.
- Fails to perform the work diligently without delay.
- Fails to perform the work under the contract competently (as a competent builder).
- Fails to provide the correct materials in accordance with the specifications of the contract.
- Unreasonably fails to replace or remedy defective materials or defective work.
- Unreasonably suspends the works or fails to maintain reasonable progress.
- Is otherwise in substantial breach of the contract.
Please read - Terminating a Residential Building Contract in Queensland
If you validly terminate the building contract, then you can either:
- Sue the builder in Court or in QCAT for breach of contract; or
- Make a claim against the Queensland Home Warranty Insurance Scheme.
Get Assistance under the Queensland Home Warranty Insurance Scheme
In accordance with the Queensland Home Warranty Insurance Scheme, homeowners in Queensland who have had building work completed worth more than $3,300 by a building contractor may file a claim with the QBCC under the Home Warranty Insurance Scheme if errors and defects are discovered and not rectified by the builder.
In the event that the contractor is unable to resolve the issue, the Home Warranty Insurance Scheme provides protection for both the homeowner and the contractor.
Within three (3) months of learning of a structural defect, or seven (7) months for a non-structural defect, a consumer must submit a formal complaint to the Queensland Building and Construction Commission (QBCC) in order to make a claim. Click here to be taken to the QBCC.
If the claim is accepted, the QBCC will pay the homeowner, or arrange for a panel builder to rectify the work, and then ask the contractor for payment.
You can also make a claim against the statutory Home Warranty Insurance Scheme if you validly terminate the building contract.
Different time limits apply, so it is vital that you get legal advice as soon as you are able. Click for the Home Warranty Insurance Scheme product disclosure.
In some cases, you may also be able to claim for consequential damage.
What is Consequential Damage?
As per section 72(1) and 72(2) of the QBCC Act as mentioned above, if consequential damage has been caused by, or as a consequence of, carrying out building work the QBCC may direct the person who carried out the building work to remedy the consequential damage.
Section 71H(1) of the QBCC Act states that:
"Consequential damage" is damage (a) caused by, or as a consequence of, carrying out building work at a building site (the "relevant site"), regardless of any intention, negligence or recklessness of the person carrying out the work; and (b) to a residential property at the relevant site, containing the relevant site or adjacent to the relevant site.
Section 71H(2) of the QBCC Act defines "damage" as including (but not limited to):
(a) the impairment of drainage at the property;
(b) the undermining of a fence, retaining wall or other structure along the boundary of the property;
(c) the compromising of the structural integrity of a building, swimming pool or wall on the property;
(d) the cracking, lifting or cratering of a driveway or pathway on the property;
(e) water penetration of the property;
(f) infestation of the property by termites.
Complaints not Involving a Builder
If you are in conflict with a third party over the construction of your property but the third party is not a builder, QCAT may also be able to help and make judgements in certain cases. This could include disputes against:
- Electricians or electrical contractors.
- Quantity surveyors.
- Suppliers or manufacturers of materials used in building.
Defective Building Work - Key Takeaways
Building a home can be a difficult and stressful process. The last thing that new homeowners need is defective building work!
Unfortunately, it does happen and may happen to you with a contractor you employ.
Make sure that you look into your builders before hiring the first one you see or the cheapest option; it may end up costing you more later!
At Stonegate Legal we help homeowners, contractors, body corporates, principal contractors, and commercial building owners - and help resolve all building and construction disputes.
Defective Building Work FAQ
Both homeowners and building contractors may experience frustration and financial hardship as a result of defective construction work.
Here are some of the often-asked questions we get at Stonegate Legal regarding defective building work in an effort to help answer some common queries and worries:
How long does a builder have to fix defects Qld?
A builder has 6 years 6 months or within 3 months of noticing the defect for structural defects; or within 6 months after the day the work is completed or within 7 months of the day the work is completed for non-structural defects.
Is a builder responsible for defects?
Yes. The builder is responsible for all structural and non-structural defects on the property. If they do not accept responsibility and rectify the defects, then you can make a complaint to the QBCC.
How long does a builder have to fix defects after handover?
Your builder has a 12-month statutory defect liability period after you take possession of your new house during which they must fix any defective work.
What if a contractor does not rectify defects?
If your contractor does not rectify defects, then you should first speak with your builder or contractor. If they do not accept liability, lodge a complaint with the QBCC. If QBCC cannot help, then you can lodge a building & construction claim with QCAT. If all else fails, you may be able to terminate the building contract for substantial breach and sue the builder for damages.
What is considered a non-structural defect?
In the QBCC Rectification of Building Work Policy, 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.
What are non-structural defects examples?
Some examples of non-structural defects include (a) dents in the walls or finishes; (b) general deterioration of the works; (c) minor corrosion with the works; (d) spalling and degradation of concrete; (e) small blemishes to the works; (f) failing gutters and roof coverings; (g) thin cracks or minor settling-in cracks; and/or (h) uneven finishes and non-level finishes.
What is considered a structural defect?
In the QBCC Rectification of Building Work Policy, 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.
What are structural defects examples?
Typical examples of structural defective building work include (a) damage and cracks in slabs and floors of the building; and/or (b) damage and cracks in the foundations of the building; and/or (c) damage and cracks in walls of the building.
What do I do if I suspect building work on my property is defective?
If you suspect building work on your property is defective you should (a) find out and record when the building work was finished; then identify the relevant pages in the QCBB Standards and Tolerance Guide for the construction work category; and then find the item in the booklet section of the QCBB Standards and Tolerance Guide for the appropriate category. Once you have identified your eligibility, you can make a complaint to the QBCC.
What if the builder / contractor refuses to repair the defect?
If the builder / contractor refuses to repair the defect during negotiations, then make a complaint to the QBCC. If the builder / contractor refuses to repair the defect after being given a notice to rectify, then lodge a complaint with QCAT. You make also be able to terminate the contract and sue the builder for damages.
What if I am not happy with the decision made by the QBCC?
If you are not happy with the decision made by the QBCC, within 28 days after being given the unfavourable decision by QBCC, you can apply for external review the QBCC decision in QCAT. A a decision to give a direction to rectify or remedy or not to give the direction is a reviewable decision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.