Time to turn your clock back. New time limits on making complaints about defective building work

Although it can be likepulling teeth sometimes, a Body Corporate may ask the Queensland Building andConstruction Commission (“QBCC”) togive a direction to rectify to a building contractor for building work relatingto common property, where the Body Corporate considers the work is defective.

If, upon inspection, theQBCC agrees the defects complained of are indeed defective, the QBCC willconsider issuing a direction to rectify under section 72 of the Queensland Building and ConstructionCommission Act 1991 (“QBCC Act”).

When deciding whetherto direct, the QBCC has regard to the Queensland Building and ConstructionBoard’s Rectification of Building WorkPolicy (“Rectification Policy”).

The RectificationPolicy defines defective building work asbuilding work that is faulty or unsatisfactory and includes work that:

• Doesnot comply with the Building Act 1975,Building Code of Australia or an applicable Australian Standard; or

• Involvesthe use of a manufactured product that has not been used, constructed orinstalled in a way that complies with the product manufacturer’s instructions.

Beforeturning to the timeframes that apply to the lodging of a complaint with theQBCC, it is first necessary to understand that there are two (2) types ofdefective building work in the eyes of the QBCC - the Rectification Policydefines:

1. Structural defective building work as defective building work (other than residential construction work causing subsidence) that is faulty or unsatisfactory because:
   
   
2. it adversely affects the structural performance of a building;
3. adversely affects the health or safety of persons residing in or occupying a building;
4. adversely affects the functional use of a building; and/or
5. allows water penetration into a building.
6. 
   
7. 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:
   
   
8. 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
9. 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 structuraldefective building work and non-structural defective building work,the Builderalso has to have been given an opportunity to rectify the defective workcomplained of, before the complaint is lodged with the QBCC – so additionaltime needs to be allowed for that, also.

QBCC Insurance/Queensland HomeWarranty Scheme

For thoseBodies Corporate that fall within the operation of the QBCC insurance regimeknown as the Queensland Home Warranty Scheme there are additional (and perhapsmore confusing) timeframes that apply to claims – the operation of this schemeto Bodies Corporate is a topic unto itself and it will be the subject of afuture Activated.

What you should do

As a BodyCorporate, if you are concerned there may be defects in the originalconstruction of your building/common property, you should ensure that you takesteps to identify those defects as soon as possible and in any event (inrespect of structuraldefective building work), well before 6 years have passedsince the certificate of classification was issued on the completion of theoriginal 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 theBody Corporate fails to take advantage of the QBCC’s process within time, theBody 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 andremedies in relation to defective building work.

ActiveLaw’s construction team are very experienced in all aspects of construction lawincluding statutory compliance and reviews of QBCC decisions, as well as allother aspects of law affecting the construction industry. The construction teamat Active Law can swiftly identify your rights and obligations and can ensureyou 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.