Noosa certifier, Luke Neller loses QCAT appeal for costs against QBCC

A building certifier has attempted to claim more than $40k in costs against the building watchdog after a misconduct finding regarding a luxury waterfront home’s rooftop tennis court was overturned.

Project BA director and senior certifier Luke Edward Neller was granted leave to appeal a Queensland Civil and Administrative Tribunal decision from 2021, which stated he had engaged in unsatisfactory conduct over an approved development for a controversial rooftop tennis court.

A Noosa-based building certifier, who successfully won an appeal against a building commission’s findings of misconduct, has lost his bid at securing more than $40,000 in costs.

Luke Edward Neller, the director of Noosa-based construction certifier company, Project BA, successfully appealed the decision brought by the Queensland Building and Construction Commission, which initially claimed he had engaged in misconduct.

The QBCC decision was in relation to the signing-off of a controversial tennis court built on the roof of an exclusive Minyama Island home in 2019.

According to court documents from the Queensland Civil and Administrative Tribunal, Mr Neller successfully appealed the misconduct findings, due to the building commission starting proceedings after the cut off date allowed disciplinary action to be taken.

“As a consequence, the commission ultimately withdrew the complaint against Mr Neller for unsatisfactory conduct,” the documents stated.

Roof top tennis court on Minyama Island home. Photo Patrick Woods / Sunshine Coast Daily.

In total, Mr Neller and his company sought about $42,000 in costs from the QBCC due to legal expenses incurred during court proceedings.

Mr Neller argued he was denied natural justice in proceedings with the QBCC, through its failure to disclose relevant documents he could have used in the initial hearings.

“(The QBCC) preferred to liaise with the Sunshine Coast Regional Council in coming to its decision rather than Mr Neller and relied on the undisclosed documents,” the documents stated.

QCAT member Richard Oliver found that while some documents were not disclosed it did not prejudice Mr Neller or the company in a way that warranted costs.

Mr Oliver also found there were reasonable grounds for the QBCC to conduct an investigation into the rooftop tennis court approvals due to the lack of appropriate balustrading, which could have led to “serious harm”.

“Clearly the rooftop had been designed to be used as a tennis court with the shade hoods used as the tennis court fence,” the documents stated.

“The other important feature is that even on the development approval the hoods could still be raised using the hydraulic rams.”

Ultimately, Mr Oliver dismissed Mr Neller and Project BA’s application for costs to be paid by the QBCC.

“It is not in the interest of justice to make a costs order in favour of the applicants in this case,” Mr Oliver said.