Builder’s appeal dismissed: $44,031.61 order for retaining wall drainage defects stands (QCAT, 2026)

What happened

The owners and a building company entered a contract in 2013 for the construction of a new home and a swimming pool on the owners' land. In 2018 the owners complained to the Queensland Building and Construction Commission (the QBCC, the state building regulator) about a number of alleged defects in the builder's work. In 2019 the QBCC gave the builder a direction to rectify and/or complete defective work, which related to a retaining wall and the swimming pool.

That direction was taken to the tribunal for review. The review was heard in 2022 and on 7 August 2023 the tribunal confirmed the QBCC's decision. At the time of the decision being appealed here, made on 16 June 2025, the direction to rectify had still not been complied with by the builder.

Separately, the owners had filed their own application in the tribunal in 2019 for the cost of putting the work right. That application was put on hold while the QBCC matter ran, then reactivated after the QBCC decision was confirmed in August 2023. By the hearing, the claim had narrowed to one issue: the block retaining wall and allegedly inadequate drainage. The amount claimed, $44,031.61, was based on a quote to provide drainage and waterproofing for the retaining wall. The original claim had been for $23,000.

The tribunal at first instance ordered the builder to pay the owners $44,031.61 by 1 August 2025. An application to stay (pause) that order was refused on 12 November 2025. The builder then appealed. The appeal was heard on the papers, meaning on the written material without an oral hearing.

What each side wanted

The builder argued four things: that the tribunal made an order beyond the amount claimed, because the original claim was for $23,000 and no amended application was ever filed; that the tribunal had no jurisdiction because section 77 of the Queensland Building and Construction Commission Act 1991 (Qld) bars an application unless the person has first completed the QBCC's dispute resolution process, and no QBCC resolution letter was produced; that the hearing was unfair and the presiding member was not impartial, because the owners kept interrupting and the member commented on the builder's past court experience and on the binding effect of findings in the earlier review; and that the findings of fact were not open on the evidence, because there was little engineering evidence about the drainage or waterproofing. The owners answered that the higher figure reflected the time the matter had taken and had been discussed and clarified at a compulsory conference on 21 June 2024, that the earlier case had followed the QBCC complaint process and had been finally determined, and that the evidence before the tribunal included construction specifications, engineering drawings, an engineer's report, the recorded complaints and photographs.

What the tribunal decided

The appeal tribunal ordered: "Leave to appeal in relation to ground 4 of the appeal is refused" and "The appeal is otherwise dismissed."

The effect is that the first instance order stands: the builder is to pay the owners $44,031.61, which the original decision required by 1 August 2025. A stay of that order had already been refused on 12 November 2025. The published orders record no order about the costs of the appeal.

Why the tribunal decided it that way

On the amount, the appeal tribunal explained that the tribunal does not have formal pleadings like a court. Under section 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), procedure is generally at the tribunal's discretion, the tribunal is not bound by the rules of evidence or court practice, and it must act with as little formality and technicality as proper consideration of the matter allows. The builder had known the figure before the hearing: the $44,031.61 quote was in the hearing book, the person who wrote the quote gave evidence by telephone and was cross-examined, and the objection was made only belatedly. The first instance tribunal had found the amount was properly particularised and that the builder had notice of it, and that the narrowed claim about retaining wall drainage "was not a new claim". So the builder was not taken by surprise.

On jurisdiction, the appeal tribunal noted that the earlier case had followed the QBCC complaint and direction process and had been finally decided by the tribunal, that the direction to rectify and the earlier reasons both referred to the retaining wall, and that a QBCC letter of 22 November 2023 said the regulator could not issue a further direction because that power had effectively been "spent". Decisively, the builder had not raised any argument at the first hearing that a further QBCC process had to be completed first. Quoting the High Court in University of Wollongong v Metwally (No 2), the appeal tribunal said a party is bound by the conduct of its case and, except in the most exceptional circumstances, cannot raise a new argument after losing that it could have put at the hearing.

On fairness and bias, the transcript showed the parties interrupted each other from time to time and the member asked them to stop. Nothing in the passages relied on showed the builder was unable to finish presenting its case or was denied a fair hearing; at one point, asked "Are you finished?", the builder's representative said yes. The member's remarks about the builder's past litigation experience arose in context, and the comments about the earlier findings arose in a discussion of issue estoppel, the principle that an issue already decided between the same parties cannot be reopened. No application was made for the member to step aside at the time. The appeal tribunal found nothing even remotely suggestive of a lack of impartiality.

On the facts, the fact-based ground needed leave to appeal under section 142(3)(b) of the QCAT Act. Leave is generally given only where there is a reasonably arguable error, a reasonable prospect of substantive relief, substantial injustice, or a question of general importance. An appeal tribunal will not readily disturb findings of fact unless they are shown wrong by incontrovertible facts or uncontested testimony, or are glaringly improbable or contrary to compelling inferences. Here the experts had agreed the installed drainage was not effective and that the waterproofing was inadequate, and the first instance tribunal was not convinced the waterproofing could not have been done as the experts advised, and doubted from photographs that it had been applied at all. There was sufficient evidence for the findings, so leave was refused.

What this means if you are in a similar position

If you are in a similar position, this decision shows how the tribunal treats the amount in a building claim. Because the tribunal does not use formal pleadings and must act with as little formality as the matter allows, a claim figure that grows between filing and hearing is not automatically beyond its power to award. What mattered was notice: the quote was in the hearing material, its author gave evidence and was cross-examined, and the objection came late. It also shows that keeping a paper trail of specifications, engineering drawings, expert reports and photographs is what findings about defective work are built on, and that where both sides' experts agree on a point, that agreement carries weight.

The decision also shows how narrow an appeal is. An appeal is not a second hearing. A jurisdiction argument that was never raised at the first hearing will usually not be entertained later, because a party is bound by the way it ran its case. A complaint that a member was not impartial is tested against the transcript, and the time to ask a member to step aside is at the hearing, not after the result. On facts, leave to appeal is needed and is given only where there is an arguable error, real substantial injustice, or a point of general importance.

In this kind of dispute, most people begin with something written rather than an application: a regulator complaint or a clear written notice to the other side that lists each item, says what is wrong and what is being asked for, and sets a date. If that goes nowhere, the next step is usually an application to the tribunal, with the quotes, reports and photographs attached.

How to apply: our step-by-step guide to a QCAT application. More decisions: QCAT cases and builders and building defects.

Source: Kimama Holdings Pty Ltd v Baggott [2026] QCATA 148 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.