The Tribunal set aside the QBCC's direction to rectify, finding it would be unfair under s 72(5) of the QBCC Act to require the builder to rectify a cracked pool where the defect was caused entirely by an inadequate engineering design for reactive soil conditions, not by any fault in the builder's construction methods or workmanship. While the Tribunal accepted the pool was 'defective' for non-compliance with AS2783-1992, it held that the fairness discretion required consideration of the whole factual matrix including the builder's blamelessness, the competing interests of the parties, and the builder's reasonable reliance on a qualified professional engineer's design — applying Imperial Homes and Wright v Duke Building. The decision confirms that where a defect is attributable to a design error by an independent registered professional engineer, and it was not within the reasonable expectation of the builder's knowledge and ability to identify the design inadequacy, it may be unfair to direct the builder to rectify, even though the statutory scheme does not require proof of fault as a precondition to issuing a direction.
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