J & K Homes Pty Ltd v Queensland Building and Construction Commission
[2016] QCAT 72
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- Unreported Judgment
- J & K Homes Pty Ltd v Queensland Building and Construction Commission[2016] QCAT 72
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J & K Homes Pty Ltd v Queensland Building and Construction Commission[2016] QCAT 72
J & K Homes Pty Ltd v Queensland Building and Construction Commission[2016] QCAT 72
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | J & K Homes Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 72 |
PARTIES: | J & K Homes Pty Ltd (Applicant) v Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | GAR021-16 |
MATTER TYPE: | Building matters |
HEARING DATE: | 18 March 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Gardiner |
DELIVERED ON: | 18 March 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | PROCEDURE – Extension of time to lodge a review – where applicant sought extension of time to file a review application – whether extension should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld): s 61 Domestic Building Contracts Act 2000: s 90 Cardillo v Queensland Building Services Authority [2011] QCAT 574; Jasch v QBSA [2013] QCAT 586 followed |
APPEARANCES and REPRESENTATION (ifany):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- On 28 January 2016 J & K Homes Pty Ltd filed an application to extend time to allow the company to review a decision of the Queensland Building and Construction Commission concerning the valid termination of a contract.
- J & K Homes had entered a building contract dated in May 2013 with another party. That contract was terminated by the other contracting party and on 7 November 2014, the Commission received a complaint against J & K Homes for breach of that contract.
- The other contracting party has now claimed for non-completion of the contract by J & K Homes against the statutory insurance scheme. The Commission determined the building contract was validly terminated by the other party and J & K Homes was liable to the scheme for the funds expended to complete the contract.
- J & K Homes has filed a review of the Commission’s decision concerning the extent of the scope of works under the insurance claim and that review is progressing through the QCAT.
- J & K Homes now seeks to step back in the history of this matter and review the validity of the termination itself. J & K Homes say that if the contract was not validly terminated, the company is not liable for the current decision to seek redress for the monies claimed by the other party under the insurance scheme.
- The problem for J & K Homes is that this review application is long out of the normal review timeframe. It is however complicated by procedural mistakes made by the Commission.
- The important dates are as follows:
- On 19 November 2014 the Commission notified J & K Homes of an insurance claim;
- On 10 December 2014 the Commission informed the other party that it had been determined that the contract was validly terminated. The Commission did not inform J & K Homes of the determination;
- On 9 February 2015, J & K Homes was notified of a potential debt. The notice also enclosed the first scope of work;
- On 23 March 2015 the Commission again notified J & K Homes of a potential debt. This notice also confirmed that the Commission had determined that the contract was validly terminated but did not include a required a notice under section 157 of the QCAT Act of J & K Homes’ rights to review this decision;
- On 17 April 2015 the Commission notified J & K Homes of a second amended scope of work;
- On 8 May 2015 the Commission notified J & K Homes of a third amended scope of work;
- In July 2015, the Commission realised that the review information under section 157 of the QCAT Act had not provided to J & K Homes in March 2015;
- On 26 August 2015 the Commission informed J & K Homes of this error in a meeting at the Commission’s offices. It seems the notice of the review rights was given at this time.
- In its submission, the Commission accepts it should have notified J & K Homes of the determination that the contract was validly terminated on 10 December 2104 when the other party was told. The Commission also accepts this caused confusion when the notice of potential debt issued in March 2015 as to which was the reviewable decision.
- I am satisfied that the operative date to be used for the purposes of review rights should be the date upon which the last necessary procedural step was undertaken by the Commission. That date appears to be when the review information under section 157 of the QCAT Act was given to J & K Homes – 26 August 2015.
- The application is pursuant to s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
- The factors that are to be considered in respect of an application to extend time have been summarised in the leading case of Cardillo v Queensland Building Services Authority.[1] They are:
- Has a satisfactory explanation been given to account for the delay;
- The strength of the case the applicant will bring if allowed to proceed;
- Will other parties be prejudiced;
- Has the delay been short or long; and
- Is it in the interests of justice to grant the extension.
- Direction were made on 12 February 2016 for the filing of submissions by J & K Homes to support its application. In an email to QCAT dated 26 February 2016, the company stated it did not propose to file any further submissions.
- The only assistance I therefore have from the company in furtherance of its application are the reasons given briefly in its original application. They are:
- In the interests of natural justice; and
- That the parties consent to the extension and it is appropriate that the matter be reviewed as it relates to other proceedings before QCAT.
- This last reason is now discounted substantially as, although the Commission may have indicated it originally consented to the extension of time, there is no consent now, as is evident from the submissions in this matter.
Has a satisfactory explanation been given?
- As indicated above, J & K Homes gives no explanation for the delay.
- The Commission does not accept that a delay of 5 months after the notice of rights was given is reasonable.
- In the absence of any explanation by J & K Homes, I am unable to be satisfied that this factor carries any weight in this decision.
Strength of the case the applicant will bring
- J & K Homes makes no submission in this regard.
- In the review application itself (about which this extension application is made) the company says that no “notice of remedy of breach” was issued to the company by the other contracting party prior to the notice of termination.
- The Commission submits that the review application is “doomed to failure”.It says the contract was terminated under section 90(1) of the Domestic Building Contracts Act 2000 as it was more than twice its effective completion period.
- The Commission submits that J & K Homes has not disputed the contract period was more than 1.5 times completion and that in any event, there is no requirement for notice under section 90 of the Domestic Building Contracts Act. It also says the Domestic Building Contracts Act cannot be contracted out of.
- The Commission also relies on the comments of the Senior Member O'Callaghan in Jasch v QBSA[2] where the learned Senior Member states:
“It is unfortunate that the notice of Mr Jasch’s review rights under section 157 of the QCAT Act were not incorporated in the letter informing him of his categorisation as an excluded individual however, that does not if itself justify the granting of an extension of time when his application is doomed to fail”.
- I am satisfied that J & K Homes has little or no chance of success and that the strength of the case is extremely weak.
Other Factors
- Again, J & K Homes gives no further explanation on any of the remaining factors.
- The delay of some 5 months is very long with no reasons given for the delay.I am satisfied, in the absence of submissions from the company, the other contracting party will be substantially prejudiced if required now, so late in the recovery process, to return to an argument that should have occurred many months ago.
- Overall, and in the absence of submissions for the company (at its election), I am not satisfied that the interests of justice require this extension being granted.
- J & K Homes’ application to extend a time limit is dismissed.