Goldfield Projects Pty Ltd v Queensland Building and Construction Commission
[2017] QCAT 260
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- Unreported Judgment
- Goldfield Projects Pty Ltd v Queensland Building and Construction Commission[2017] QCAT 260
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Goldfield Projects Pty Ltd v Queensland Building and Construction Commission[2017] QCAT 260
Goldfield Projects Pty Ltd v Queensland Building and Construction Commission[2017] QCAT 260
CITATION: | Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 260 |
PARTIES: | Goldfield Projects Pty Ltd (Applicant) v Queensland Building and Constuction Commission (Respondent) |
APPLICATION NUMBER: | GAR213-15 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | A/Deputy President O'Callaghan |
DELIVERED ON: | 31 July 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – procedure – where review of scope of works decision – where applicant has sought an order obliging a non-party homeowner to provide site access – where homeowner has denied access – whether appropriate to order access Queensland Civil and Administrative Tribunal Act 2009, s 3(b). Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 361 Turcinovic v Queensland Building Services Authority [2012] QCAT 14 |
APPEARANCES: |
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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
- [1]These proceedings involve a house constructed by Goldfield Projects Pty Ltd (Goldfield) in 2012.
- [2]A complaint by the owner resulted in the Queensland Building and Construction Commission (QBCC) issuing a direction to Goldfield to rectify tiling in two bathrooms in the house.
- [3]Goldfield sought to review that decision.
- [4]The Tribunal dismissed the review in its decision dated 4 October 2016.[1] The Tribunal, in doing so, found that the tiling installations in the bathrooms and the method of fixing the shower screens to the floor was defective.
- [5]Prior to those proceedings being finalised, the QBCC had assessed the owner’s complaint as a claim under its statutory insurance scheme.
- [6]The QBCC engaged Sergon Building Consultants (Sergon) to provide a scope of works to complete the rectification works. The scope was approved by the QBCC and the rectification works were completed in August 2015.
- [7]Goldfield, in these proceedings, seeks to review the scope of works.
- [8]An application was made by Goldfield seeking an order from the Tribunal to require the owner to grant access to the site to enable representatives from Goldfield and its expert to conduct an inspection of the premises.
- [9]On 23 June 2017 I refused to make that order sought. Goldfield has asked for reasons for that decision. These are the reasons.
Background to the application for site access
- [10]This matter was listed for a directions hearing in February 2016, following the finalisation of the proceedings which confirmed the direction to rectify. Goldfield had filed an application prior to that directions hearing seeking an order for site access. The access order was not granted at the directions hearing. Instead an order was made listing the application for a compulsory conference on site. I did not preside at that directions hearing.
- [11]I understand (from the submissions of Goldfield) that it was left to the QBCC to contact the owner to arrange access for the compulsory conference. The compulsory conference was scheduled for 22 March 2017. The QBCC advised the Tribunal on 9 March 2017 that the owner had declined access for the compulsory conference and QBCC sought to change the venue to QCAT hearing rooms. Goldfield opposed the change of venue. I made a direction changing the venue to Brisbane. This meant that the compulsory conference could proceed, rather than be adjourned to some later date.
- [12]The compulsory conference proceeded. The matter was listed before me for a further directions hearing on 4 May 2017.
- [13]At that directions hearing Mr Chan, representing Goldfield, expressed his concern about the moving of the conference and insisted that an on-site inspection was necessary in order to afford procedural fairness to Goldfield. The QBCC did not consent to that course of action. As the owner was not a party, nor present at the directions hearing and had previously refused access, I did not make the order sought. I directed that Goldfield file any application for access together with submissions in support, and that following a response from the QBCC a determination on any application filed would be made on the papers.
- [14]Goldfield says that it must be given site access to allow its expert to be able to independently assess the scope of work the subject of the review.
- [15]It says it has new legal advisors and a new ‘technical consultant’ who should be able to examine the works to provide appropriate advice to the company. Mr Chan on behalf of Goldfield says that any denial of site access is a denial of natural justice.
- [16]In response, the QBCC says firstly the question of whether the works are defective should not be an issue in these proceedings. That issue was determined in the Tribunal’s previous review of the decision to issue the direction to rectify.
- [17]I accept that submission.
- [18]The Tribunal determined that the works were defective and confirmed the decision to issue the direction to rectify. I do not consider that that issue should be re-litigated in these proceedings. The defective work, namely the tiling installation, was as described in the direction to rectify and was expanded by the Tribunal in its decision to include the method of fixing the shower screens to the floor, such as to widen the scope of the rectification works required to include replacement of the waterproofing membrane.[2]
- [19]The QBCC submits, and I accept, that the issue for determination in this review of the scope of works is whether the scope of works is reasonable and necessary to rectify the defects identified.[3]
- [20]The rectification works have been completed for nearly two years. I was not convinced that an inspection of the completed works would assist an expert witness in giving evidence about the reasonable necessity for those works to rectify defects which are no longer visible.
- [21]I was not satisfied that there was any denial of procedural fairness if site access was not given. Goldfield did not articulate, at the directions hearing or in submissions in support of the application, what the procedural unfairness to it would be.
- [22]The owner is not a party to these proceedings and had declined to give access. Before any order for access was made, I would have required to hear from the owner on the issue. This would have caused further unwarranted delay to a matter which has already been in the Tribunal since September 2015. I considered, having regard to the objects of the QCAT Act to deal with matters in a way which is, inter alia, fair and quick,[4] that such further delay would not be desirable.
- [23]In all of the circumstances, I considered it was not desirable to make the order sought.
Footnotes
[1] Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 361.
[2] Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 361, [59], [74].
[3] Turcinovic v Queensland Building Services Authority [2012] QCAT 14 citing TADC v Queensland Building Services Authority [2004] QCCTB 28 and Middling v Queensland Building Services Authority [2005] CCTQ 600203.
[4] QCAT Act, s 3(b).