Although it can be like pulling teeth sometimes, a Body Corporate may ask the Queensland Building and Construction Commission (“QBCC”) to give a direction to rectify to a building contractor for building work relating to common property, where the Body Corporate considers the work is defective.
If, upon inspection, the QBCC agrees the defects complained of are indeed defective, the QBCC will consider issuing a direction to rectify under section 72 of the Queensland Building and Construction Commission Act 1991 (“QBCC Act”).
When deciding whether to direct, the QBCC has regard to the Queensland Building and Construction Board’s Rectification of Building Work Policy (“Rectification Policy”).
The Rectification Policy defines defective building work as building work that is faulty or unsatisfactory and includes work that:
- Does not comply with the Building Act 1975, Building Code of Australia or an applicable Australian Standard; or
- Involves the use of a manufactured product that has not been used, constructed or installed in a way that complies with the product manufacturer’s instructions.
Before turning to the timeframes that apply to the lodging of a complaint with the QBCC, it is first necessary to understand that there are two (2) types of defective building work in the eyes of the QBCC – the Rectification Policy defines:
- Structural defective building work as defective building work (other than residential construction work causing subsidence) that is faulty or unsatisfactory because:
- it 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; and/or
- allows water penetration into a building.
- Non-structural defective building work as 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.
Timeframes to Direct
For structural defective building work:
- Up until November 2017, the QBCC could only issue a direction to rectify within 6 years and 3 months from the date the building work was completed or left in an incomplete state.
- As from 10 November 2017 (through legislative amendments which took effect on that date) the time limit for the QBCC to issue a direction for structural defective building work has been extended to 6 years and 6 months. The QBCC does also have the power to apply to the Queensland Civil and Administrative Tribunal (“QCAT”) to extend the time beyond 6 years and 6 months, however the QBCC rarely does (so don’t expect QBCC to make such an application); however,
- There is an additional requirement in the legislation that a complaint must be made to QBCC within 12 months of the Body Corporate becoming aware of the defect.
For non-structural defective building work the Body Corporate must lodge a complaint with QBCC within 12 months of the building work being completed.
Even though a complaint can be lodged with QBCC in relation to non-structural defective building work anytime within that 12-month period (of the building work being completed), it can be extremely difficult to convince QBCC to issue a direction outside that 12-month period. Consequently, it is important that any complaint about non-structural defective building work is lodged with QBCC as early as possible, but in any event within the 12-month time limit of the building work being completed.
For both structural defective building work and non-structural defective building work, the Builder also has to have been given an opportunity to rectify the defective work complained of, before the complaint is lodged with the QBCC – so additional time needs to be allowed for that, also.
QBCC Insurance/Queensland Home Warranty Scheme
For those Bodies Corporate that fall within the operation of the QBCC insurance regime known as the Queensland Home Warranty Scheme there are additional (and perhaps more confusing) timeframes that apply to claims – the operation of this scheme to Bodies Corporate is a topic unto itself and it will be the subject of a future Activated.
What you should do
As a Body Corporate, if you are concerned there may be defects in the original construction of your building/common property, you should ensure that you take steps to identify those defects as soon as possible and in any event (in respect of structural defective building work), well before 6 years have passed since the certificate of classification was issued on the completion of the original construction of the building.
If defects are discovered within that time frame, the procedures for making a complaint to the QBCC should be carried out within 12 months of discovering those defects and in sufficient time to allow the QBCC to consider the complaint and issue a direction to rectify before the date that is 6 years and 6 months after the completion of the original work.
If the Body Corporate fails to take advantage of the QBCC’s process within time, the Body Corporate may still be liable to rectify the defects at its own expense. Therefore, it is imperative that the Body Corporate is aware of its rights and remedies in relation to defective building work.
Active Law’s construction team are very experienced in all aspects of construction law including statutory compliance and reviews of QBCC decisions, as well as all other aspects of law affecting the construction industry. The construction team at Active Law can swiftly identify your rights and obligations and can ensure you make the best submission possible in your circumstances.
Active Law’s Paul Hick is an experienced construction lawyer with 35 years of construction experience. He is also a senior adjudicator under security of payment legislation in numerous states around Australia. Formerly employed with the QBCC, Active Law’s Emma Ward, has invaluable insight into QBCC process and legislation.
Disclaimer: Reliance on content.
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.