QBSA Directions to Rectify defective work

Section 72 of the Queensland Building Services Authority Act 1991 provides the QBSA with the power to compel a person who performs defective building work to rectify the defective works this process is known in the building industry as a "Direction to Rectify" see below for extracts of section 72.

The policy of the BSA is that if a homeowner lodges a complaint against a contractor, the BSA must investigate their complaint. The BSA will then contact the contractor and the homeowner, if the matters can not be resolved at that stage a site meeting with both parties is usually arranged.

It should be remembered by contractors that if you fail to comply with a direction to rectify the BSA may simply have another contractor rectify the defective works then pursue you personally to recover those costs. See section 71 of the Queensland Building Services Authority Act 1991 below.

We always recommend to our builder clients that they personally attend these onsite meetings to put forward their side of the issue. It may be that if the value alleged defective work is significant you should personally attend with one of our industry experts.

The need to be represented in dealings with the QBSA was highlighted by the 2012 parliamentary enquiry.

In November 2012 the Committee reported on their findings, those findings recommended that the QBSA "bedisbanded as soon as alternative mechanisms for delivering its functions can be established" and "The Committee is particularly concerned by the consistent reports of harassment, intimidation and bullying".

The committee is concerned at the substantial evidence provided that the current QBSA direction to rectify and complete process has numerous weaknesses both legislative and operational including-

(1) Lack of compliance with building codes and standards.

(2) Lack of compliance with legislative and regulatory requirements.

(3) QBSA not auditing or monitoring building work toensure building standards are being met.

(4) Onus being placed on the building owner to identify defective work.

(5) Building inspectors lacking appropriate knowledge and experience to make directions to rectify.

(6) Building inspectors having personal links with building contractors and failing to disclose their conflict of interest.

(7) Perception of bias (both ways) in directions to rectify.

(8) Narrowdefinition of what a defect is.

(9) Timeliness and quality of the rectification work.

(10) Onus being placed on the homeowner to assess whether the rectification work is to an acceptable standard.

(11) Tendering for and performance of rectification work on behalf of the QBSA and inability of the QBSA to intervene when contract is still in place.

If you need help with a BSA Direction to Rectify call our building solicitor on Brisbane 07 3036 5233 or Gold Coast 07 5677 0533.

Section 71 BSA Act

Recovery from building contractor etc.

(1) If the authority makes any payment on a claim under the insurance scheme, the authority may recover the amount of the payment, as a debt, from the building contractor by whom the relevant residential construction work was, or war to be, carried out or any other person through whose fault the claim arose.

Section 72 BSA Act

(1) If the building authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction.

(2) In deciding whether to give a direction under subsection (1) the building authority may take into consideration all the circumstances it considers reasonably relevant, and in particular, is not limited to a consideration of the terms of, including the terms of any warranties included in, the contract for carrying out the building work.

(14) The building authority is not required to give a direction under this section to a person who carried out building work for the rectification of the building work if the building authority is satisfied that, in the circumstances, it would be unfair to the person to give the direction.

EXAMPLE FOR SUBSECTION 14

The building authority might deice not to give a direction for the rectification of building work because of the amount payable but unpaid under the contract for the carrying out of the building work.

(15) A direction given under this section need not be complied with if - (a) a proceeding for a review of the authority's decision is started in the tribunal; and (b) the tribunal orders a stay of the decision.

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