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Liability for defective work

July 13, 2020

Situation

An eight townhouse complex was constructed by a builder at Yeronga in about June 2009 with a certificate of classification for the building issued on 10 July 2009. Over the period January 2015 to January 2016 the builder returned and carried-out work on the retaining wall and in some units to prevent water penetration through the retaining wall.

On 15 November 2017 and 24 November 2017 respectively, the Queensland Building and Construction Commission (‘QBCC’) received separate complaints from the body corporate and the owners about water penetration

On 12 February 2018 a building inspector with QBCC inspected the premises. Following that, on 8 March 2018, QBCC decided not to issue a direction to rectify defective building work to the builder because:

  • the building work complained about was work done at the rear of a garage and there was insufficient evidence to reveal any obvious defective building work;
  • the building work was completed on 10 July 2009 and the complaints were made outside the statutory defects period which expired on 10 January 2016 before the applicants’ complaints were made.

Issue for determination

The body corproate sought a review of QBCC’s decision. The issue for determination was whether the 6 year and 6 month time limit statutory defect period restarted in 2015 when the builder undertook rectification work.

Decision

QCAT determined that the statutory defect period did not restart in 2015 when the builder undertook rectification work. It was determined that the 2015 work was not ‘new’ work and not part of a separate scope of works. Therefore the statutory time period did not start again. 

Key takeaways

The decision is a sensible and important one that provides clarity regarding the obligations of builders in relation to the rectification of defective building work.

The decision also removed any direct disincentive for contractors to undertake rectification work for the fear that the whole 6 year, 6 month time period would start again on the rectification work undertaken.

Read the case: Davis & Ors v Queensland Building and Construction Commission [2020] QCAT 189

 If you ever receive a notice from the QBCC it is important you know the processes and procedures. Do not hesitate to get into contact with a HIA workplace advisor via enquiry@hia.com.au or call HIA on 1300 650 620 to discuss.