Queensland Building and Construction Commission v Marshall & Ors [2016] QSC 200

Building certifiers may be liable to make payment to the Queensland Building and Construction Commission (QBCC) for the rectification of defective building work that is certified as compliant, but fails to comply with the Building Code of Australia.

The owner of land contracted with a builder to carry out building works between 2002 and 2004 in Brendale, Queensland, which later became known as 'The Grange'.

The second defendant, Brisbane Certification Group (certifier), certified the building work.

The work was later alleged to be defective because the fire separation walls and roof spaces did not comply with the Building Code of Australia.  The body corporate and the owners of the lots made claims under the statutory insurance scheme, and those claims were paid by QBCC.

The remaining defendants were alleged to be directors of the certifier at the time the works were carried out, or when QBCC made payment of the claims.

Pursuant to the statutory insurance scheme and section 71(1) of the Queensland Building and Construction Commission 1991 (Qld) (QBCC Act), the QBCC may recover payments made 'from the building contractor by whom the relevant residential construction work was, or was to be, carried out or any other person through whose fault the claim arose'.  Section 71(2)(b) of the QBCC Act further provides that 'a person through whose fault the claim arose is taken to include a person who performed services for the work if the services were performed without proper care and skill'.

The defendants applied for either:

• summary judgment pursuant to rule 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR); or
• to strike out the claim and statement of claim pursuant to rule 171 of the UCPR,

on the grounds that section 71 of the QBCC Act does not apply to the certifier.

The issue to be decided was whether the certifier is 'a person through whose fault the claim arose' within the meaning of section 71(1) of the QBCC Act. The certifier submitted that it is not, because it is not subject to the same regime as a building contractor as certification work is excluded from the definition of 'building work' within the meaning of the QBCC Act.  In essence, the certifier contended that a building certifier could not be an 'other person' to which the legislation referred.

Justice Jackson rejected the certifier's argument, and interpreted section 71 of the QBCC Act to include express reference to persons other than a building contractor. In disposing of the applications, Justice Jackson stated that '[t]he grounds advanced by the defendants for concluding that s 71(1) cannot apply to the second defendant are not persuasive'.

Justice Jackson ordered the certifier to pay the QBCC's costs of the application.