QCAT Conduct of Proceedings for QLD Building Disputes

What it is

QCAT is the Queensland Civil and Administrative Tribunal. Its Building and Construction List hears domestic building disputes of any value and commercial building disputes up to 50 thousand dollars, or higher if the parties agree, under the Queensland Building and Construction Commission Act 1991 (QBCC Act). Conduct of proceedings is governed by the QCAT Act 2009, the QCAT Rules 2009 and the relevant QCAT practice directions.

The QBCC early dispute step is mandatory

A homeowner or builder cannot apply to QCAT for a domestic or commercial building dispute without first going through the QBCC early dispute resolution process. The QBCC issues a notice of outcome at the end of that process. The QCAT application must attach the QBCC notice. Filing without the notice causes the application to be returned.

The QBCC process is a structured conciliation. The QBCC can also issue a Direction to Rectify under section 72 of the QBCC Act if it forms the view that the work is defective. A Direction to Rectify is a powerful remedy because non-compliance is a ground for licence action.

How a matter moves through QCAT

After QCAT accepts the application the file is set down for the procedural steps below.

Mediation

The first formal QCAT step in a building matter is mediation. Mediation at QCAT is conducted by a tribunal-appointed mediator and is confidential. Most domestic building matters resolve at mediation or significantly narrow. If mediation does not resolve the matter, the file moves to a compulsory conference or to a directions hearing.

Compulsory conference

A compulsory conference is conducted by a tribunal member under section 67 of the QCAT Act. The member can give a non-binding indication of how the matter is likely to be decided. The conference is without prejudice.

Directions hearing and timetable

If the matter is not resolved at mediation or compulsory conference, the member sets a procedural timetable for statements of evidence, the alleged defective and incomplete work schedule, expert reports and an experts conclave where ordered, with a listed final hearing window.

The alleged defective work or incomplete work schedule

Where the homeowner seeks rectification or completion the applicant must file the QCAT alleged defective and incomplete work schedule with the application. The schedule lists each defect with a clear number, a description of the defect, the location, the proposed rectification work, the estimated cost and the basis of the cost. It is the Queensland equivalent of a Scott schedule and it operates the same way at hearing.

Expert reports

Each party briefs an independent expert. The expert must read the Code of Conduct for Expert Witnesses in Annexure C to the QCAT practice direction on expert evidence and acknowledge that the duty to the Tribunal is paramount. A report from an expert who has not signed the Code of Conduct acknowledgement is liable to be excluded.

Hearing day

A defect hearing in QCAT typically runs one to three days for a single dwelling. The member opens with the defective work schedule and works through each item.

Concurrent evidence

QCAT often uses concurrent expert evidence. Both experts give evidence at the same time. The member runs through each defect and asks each expert to comment on cause, scope and cost. This is faster and more useful than sequential cross-examination because the experts respond to each other in real time. Lay evidence on the build history and complaint history follows.

Closing submissions

Closing submissions are often oral and short. For larger files the member orders written submissions within 14 to 28 days of the last hearing day. Orders are usually published within three months.

Builder duties during the proceeding

The builder must comply with any QBCC Direction to Rectify even while a QCAT application is on foot, unless the Direction is stayed on review. The builder must give the homeowner expert reasonable access for joint inspection, must produce the contract file and variations and inspection records, and must not destroy alleged defective work without leave. The statutory implied warranties under Schedule 1B of the QBCC Act continue to apply throughout the proceeding.

Homeowner duties

The homeowner must give the builder reasonable access for inspection and must mitigate loss. The homeowner cannot pull out alleged defective work and replace it before the builder is given a fair chance to inspect, except for emergency works. The homeowner must comply with QCATs disclosure orders, including production of photographs and contemporaneous emails and any prior building reports.

Common errors

Filing a QCAT application without the QBCC notice of outcome. Filing without a defective work schedule. Bundling several defects into one row of the schedule. Briefing an expert who has not acknowledged the QCAT Code of Conduct. Treating the mediation as a tactical box-tick rather than a genuine attempt to settle. Failing to update the schedule after the joint inspection so the Tribunal works from a stale document. Forgetting that a QBCC Direction to Rectify remains live and binding while the QCAT application runs in parallel.