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Pantha Homes QLD Pty Ltd v Queensland Building and Construction Commission[2017] QCAT 456

Pantha Homes QLD Pty Ltd v Queensland Building and Construction Commission[2017] QCAT 456

CITATION:

Pantha Homes QLD Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 456

PARTIES:

Pantha Homes QLD Pty Ltd

(Applicant)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

GAR100-17

MATTER TYPE:

General administrative review matters

HEARING DATE:

20 November 2017

HEARD AT:

Brisbane

DECISION OF:

Member Olding

DELIVERED ON:

12 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

The time for the Applicant to apply for review of the Respondent’s decision of 9 November 2016 to issue a Direction to Rectify is extended to 18 April 2017.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant sought extension of time to apply for external review of decision of the Queensland Building and Construction Commission to issue a Direction to Rectify – where defective work already remedied – where applicant sought review for the purpose of having the Direction to Rectify removed from the publicly available database – where applicant informally sought internal review within time but did not lodge a formal application

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 72, s 86(1)(e), s 86A, s 86B, s 86C, s 87, s 87A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33, s 61

Cardillo v Queensland Building Services Authority [2011] QCAT 574

Timothy Peter Jensen v Queensland Building and Construction Commission [2017] QCAT 232

APPEARANCES:

APPLICANT:

Pantha Homes QLD Pty Ltd

RESPONDENT:

Queensland Building and Construction Commission

REPRESENTATIVES:

APPLICANT:

represented by Troy Lukritz of Pantha Homes QLD Pty Ltd

RESPONDENT:

represented by Dean McNulty, in-house solicitor at the Queensland Building and Construction Commission

REASONS FOR DECISION

  1. [1]
    Pantha Homes QLD Pty Ltd (the builder) applied for review of a decision of the Respondent Commission to issue a Direction to Rectify (DTR) an alleged defect in a home it constructed.
  2. [2]
    The application to review was filed outside the statutory 28-day time limit.[1] 
  3. [3]
    The builder has applied to extend that time limit to allow its application to review to proceed.  The Commission opposes the extension and asks for the application to review to be dismissed.
  4. [4]
    I have decided to grant the extension of time. My reasons follow.

Statutory framework

  1. [5]
    Pursuant to s 3, the objects of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) include:

(a) to regulate the building industry—

(i) to ensure the maintenance of proper standards in the industry; and

(ii) to achieve a reasonable balance between the interests of building contractors and consumers; and

(b) to provide remedies for defective building work; and

(c) to provide support, education and advice for those who undertake  building work and consumers; and

. . .

  1. [6]
    Relevant to the object of providing remedies for defective building work, s 72 allows the Commission to issue a DTR.
  2. [7]
    A decision to issue a DTR is a “reviewable decision”: s 86(1)(e). The Act provides for both internal review by the Commission and external review by the Tribunal.
  3. [8]
    The following provisions govern internal reviews:

86A Who may apply for internal review

(1) A person who is given, or is entitled to be given, notice of a reviewable decision may apply to the internal reviewer to have the decision reviewed.

(2) However, subsection (1) does not apply if the person has applied to the tribunal for a review of the reviewable decision under subdivision 2.

(3) Also, if—

(a) the person applies for an internal review of the reviewable decision; and

(b) before the application is decided, the person applies to the tribunal for review of the reviewable decision under subdivision 2;

the application for internal review of the decision lapses.

86B Requirements for making application

An internal review application must—

(a) be made within the following period—

(i) 28 days after the applicant is given notice of the reviewable decision to which the application relates or otherwise becomes aware of the decision; or

(ii) a longer period allowed by the internal reviewer, whether before or after the end of the 28-day period mentioned in subparagraph (i); and

(b) be lodged at an office of the commission.

86C Internal review decision

  1. (1)
    If an internal review application is made under section 86B, the internal reviewer must, as soon as practicable but within the required period, make a new decision (the internal review decision) as if the reviewable decision the subject of the application had not been made.
  1. (2)
    For subsection (1), the required period is—
  1. (a)
    28 days after the internal review application is made; or
  1. (b)
    a longer period agreed to by the applicant.
  1. (3)
    However, if the internal reviewer does not decide the application within the required period, the internal reviewer is taken to have made an internal review decision at the end of the required period that is the same as the reviewable decision.

. . .

  1. [9]
    The following provisions of the QBCC Act govern external reviews:

87 Application for review

A person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

87A No stay by QCAT of particular decisions

  1. (1)
    This section applies if a person applies to the tribunal for a review under section 87 of any of the following decisions of the commission—
  1. (a)
    a decision to give a direction to rectify or remedy or not to give the direction;

. . .

  1. (2)
    QCAT must not grant a stay of the decision.
  1. [10]
    Additionally, the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) relevantly provides:

33 Making an application

  1. (1)
    This section applies if this Act or an enabling Act provides that a person may apply to the tribunal to deal with a matter.
  1. (2)
    The application must—
  1. (a)
    be in a form substantially complying with the rules; and
  1. (b)
    state the reasons for the application; and
  1. (c)
    be filed in the registry.
  1. (3)
    If the application is for the review of a reviewable decision, the application must be made, by filing it in the registry, within 28 days after the relevant day.

Notes—

1 Under section 6(7), an enabling Act that is an Act may provide for a different period within which a person must make an application.

2 Under section 61, the tribunal may extend the period within which a person must make an application.

relevant day, for an application for the review of a reviewable decision, means—

(a) the day the applicant is notified of the decision; or

. . .

61 Relief from procedural requirements

(1) The tribunal may, by order—

(a) extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or

. . .

(2) An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.

Background

  1. [11]
    The following facts are not in contention:
    1. The builder constructed the home in which the defect was alleged to be present, with practical completion achieved on 20 December 2013.
    2. When approached by the owners in late September 2016 about the alleged defect, the builder suggested that the owners obtain a report from a plumber with camera work footage for the ingress and egress of the toilet and to check pipe work.
    3. The owners’ plumber advised that the problem with the toilet arose out of the “offset pan collar” that was used by the builder.
    4. The builder, being dissatisfied with the plumber’s work, declined to reimburse the plumber’s charges.
    5. The owners then complained to the Commission.  A report prepared by the Commission indicates that the alleged defect was notified on 9 October 2016 and the builder was notified on 18 October 2016.[2]
    6. An inspection by a Commission officer occurred on 4 November 2011.  The builder was invited to but did not attend the inspection.  Mr Lukritz, a director of the builder who appeared at the hearing, advised that he was intending to attend the inspection but something arose which prevented him doing so. Mr Lukritz was given an opportunity to elaborate but said he could not remember why the builder was not able to attend the inspection.
    7. The same plumber who had undertaken the earlier inspection for the owners attended the inspection and shortly after the inspection removed the toilet from the house, leaving it at the site.
    8. The Commission notified the builder of the issue of the DTR on 9 November 2016.
    9. The builder replaced the toilet within the 28 period specified in the DTR for the alleged defect to be remedied.
    10. Mr Lukritz engaged with the Commission about the DTR, seeking and receiving answers to various questions.
    11. In an email sent on 14 November 2016 at 6-51am, Mr Lukritz advised the Commission’s inspector, Mr Colin Rendell, that he would organise a site inspection by a plumber to “determine the true cause of the blockage”.  The email finished with the following:

We shall advise further as more information comes to hand. In the meantime please supply your report up the food chain within the QBCC to begin the process of internal review, and advise whom we are to make contact with in relation to our enquiries about the report, and the directive, in due course.

Thank you Colin for your assistance to date.

  1. Mr Rendell responded that afternoon, advising:

The forms and all relevant information you require to submit a request for internal review is on the QBCC web site. If you intent (sic) to have your own plumber prepare a report, you may consider submitting that with you (sic) request for review as supporting your reason for review.

  1. At the hearing, I asked Mr Lukritz what was his reaction to receiving this email advising how to submit an internal review application.  Mr Lukritz responded that he thought it would be pointless to lodge the application at that time as he had not had an opportunity to test the toilet and could not add any input to the review at that point. He went on to say that by asking the Commission to begin the process of internal review he expected that the file would be left open until what had happened could be worked out.
  2. The builder lodged an internal review application form on 15 March 2017.
  3. By letter dated 20 March 2017, the Commission advised the builder that the application was received out of time and would not be determined.
  4. The builder lodged, by mail, an application to review the decision to issue the DTR, which was received at the Tribunal on 18 April 2017, the day after the Easter weekend.
  1. [12]
    As noted, the toilet was removed from the house shortly after the inspection.  Mr Lukritz advised that between the time he asked for the internal review process to begin and the lodging of the formal internal review application, he arranged for the toilet to be installed in the same way at the builder’s premises and that, unlike the experience reported by the owners, no blockages occurred.

Consideration

  1. [13]
    It has been held that in the consideration of an application to extend the time to make an application for review a number of factors should be considered.[3]  These are set out below along with my comments in relation to each factor.
    1. Has a satisfactory explanation been given to account for the delay?
  2. [14]
    Essentially, Mr Lukritz’s explanation for the delay is that he thought he had commenced the internal review process but that he considered that it was not logical to lodge an application form until he had had an opportunity to test the toilet. When he did lodge the application form, he was told that it was out of time, so he then lodged an application for review by the Tribunal.
  3. [15]
    I would not, without more, accept that not lodging within the time specified by the Parliament is satisfactorily explained by an applicant considering that it would not be logical to lodge at that time and that lodging at a later time would, in the applicant’s view, make more sense.
  4. [16]
    Here, though, the circumstances are more complicated in that the builder had, within the time for lodging an internal review application, requested by email that the internal review process commence.
  5. [17]
    Section 86B of the QBCC Act, which is about internal review applications and is headed “Requirements for making application”, does not specify that an application must be in a particular form. Mr McNulty, who appeared for the Commission, confirmed that there is no “approved form” or similar requirement for a valid internal review application under the QBCC Act or in regulations made under the Act.[4]
  6. [18]
    Further, the response from Mr Rendell, although advising that the application form could be found on the Commission’s website, did not expressly advise that Mr Lukritz’s email would not commence the internal review process as he requested, nor reiterate the time limit for lodging an internal review application.
  7. [19]
    Although it may have been helpful if this further detail had been included, and one of the objects of the QBCC Act is to “provide support, education and advice for those who undertake building work”,[5] this should not be taken as a criticism of Mr Rendell’s advice, which must be seen in its context rather than through the lens of hindsight. 
  8. [20]
    However, this exchange does provide an explanation for how the delay in applying to the Tribunal, which was inextricably linked with this attempt to apply for internal review, occurred. In all the circumstances, I consider that the builder does have a satisfactory explanation for the delay.

b) The strength of the case the applicant will bring if allowed to proceed

  1. [21]
    It is, of course, impossible to make a detailed assessment of the strength of the builder’s case in advance of considering the evidence that would be admitted at the hearing.
  2. [22]
    However, if the builder’s contention that the alleged defect was not reported until almost three years after the handover of the house were to be accepted, it is not impossible that the Tribunal would be persuaded that the blockage occurred for reasons other than defective work, such as inappropriate use by the owners. Evidence from Mr Lukritz that the toilet, installed in the same way at the builder’s premises, has functioned without difficulty might also be accepted.
  3. [23]
    Much would depend on the evidence available at the hearing, in particular whether expert evidence to refute the opinion of the owners’ plumber is forthcoming and accepted.
  4. [24]
    Overall, based on material currently available, I would not accept that the builder’s case is weak.

c) Will other parties be prejudiced?

  1. [25]
    Other than being exposed to the risk of the decision being set aside, and the use of resources in the conduct of a hearing, which necessarily diverts resources from other priorities – which I do not discount - there is no identifiable specific prejudice to the Commission. If an extension  were to be granted, the Commission’s conduct of the case would not otherwise be prejudiced.

Has the delay been short or long?

  1. [26]
    This is not a case of a minimal delay, such as a few days.  The application was lodged some five months after the expiry of the time limit. 
  2. [27]
    If the lodging of the Commission’s form is treated as the lodging of an internal review application, that too was significantly late, some four months after the expiry of the time for internal review applications. However, as noted, Mr Lukritz did request an internal review within time, albeit not using the Commission’s form to do so.
  3. [28]
    Overall, I conclude that the delay is significant.

e) Whether it is in the interests of justice to grant the extension

  1. [29]
    Mr Lukritz submits that the matter should be resolved as a matter of substance, that is, with regard to whether the work was in fact defective, and not according to “bureaucratic” inflexible rules.
  2. [30]
    This is really not to the point.  As has been said by the Tribunal, the time limits are there for a reason and it is important that they are observed so that the statute operates efficiently.[6]
  3. [31]
    Nevertheless, to the extent that an applicant appears on the material available to have an arguable case, it might be said that the interests of justice consideration would, without more, weigh in favour of allowing the extension.
  4. [32]
    During the hearing, Mr McNulty made a submission referring to the fact that the builder had rectified the alleged defect.  Hence, at the time the matter fell to be considered, it could be a correct and preferable decision of the Tribunal to set aside the decision to the issue the DTR as it would at that point have no utility. This, Mr McNulty submitted, weighed against granting an extension.
  5. [33]
    I gave the parties an opportunity to identify any relevant cases and make written submissions regarding this issue subsequent to the oral hearing. The Commission filed written submissions elaborating on this issue and the builder filed submissions in reply.
  6. [34]
    The Commission confirmed that it maintains a licensee database, which may be accessed by the public. The information available to the public includes whether a licensee has been issued with a DTR and whether the DTR has been complied with.
  7. [35]
    The Commission went on to submit that achieving the practical objective of rectifying defective building work[7] is the primary purpose of vesting in the Commission the power to issue a DTR. This is said to be supported by the prohibition on the Tribunal granting a stay of a decision to issue a DTR.[8]
  8. [36]
    The interests of justice consideration should also, according to the Commission, take into account the public interest, which would not be served by allowing a review that is not directed to the primary purpose of rectifying defective building work.  The builder does not deny that its interest is in removing the “black mark” of the DTR from the public record.
  9. [37]
    The Commission’s submissions on this issue conclude by asserting that:

Granting an extension of time under these circumstances may have the effect of encouraging others to seek to enliven QCAT’s jurisdiction for the purpose of obtaining a more favourable public record.  A preponderance of administrative review proceedings undertaken for this purpose has the potential to unfairly distort the objectivity of the public record.

  1. [38]
    I am not persuaded that the potential for licensees to be encouraged to exercise their statutory rights to apply for review of the Commission’s decisions to issue DTRs is a valid consideration. Nor do I understand how decisions of the Tribunal, either confirming or setting aside a DTR, reflected in the publicly available licensee database, could “unfairly distort the objectivity of the public record”.
  2. [39]
    Contrary to the Commission’s submission, it seems to me that the prohibition on the Tribunal granting a stay of a decision to issue a DTR indicates that the provisions of the QBCC Act contemplate that Tribunal reviews will occur after defects the subject of a DTR have been remedied. In the normal course, a compliant licensee would comply with the DTR long before the Tribunal hears an application for review of the decision to issue the DTR.  The removal of the DTR from the public record may well be the primary purpose of the review in those circumstances. 
  3. [40]
    I see nothing inappropriate, or to be discouraged, in builders exercising the right to external review that the Parliament has seen fit to provide, with the consequence that the public record only includes DTR’s held upon external review to have been properly issued.
  4. [41]
    It is not surprising that correction of the public record would be a significant consequence of a successful application for external review. Since the decision to issue the DTR cannot be stayed pending external review, an opportunity to avoid carrying out the remedial works is not afforded by external review where the period for effecting the remedy inevitably expires before the application is heard and decided by the Tribunal.
  5. [42]
    The interests of justice factor in my view favours the granting of an extension.

Conclusion

  1. [43]
    As has been noted, time limits are there for a reason and I would not lightly grant an extension of time in a case where an application is made some five months after the expiry of the time limit.
  2. [44]
    However, weighing up the factors considered above and having regard to the unusual circumstances of this case – in particular, the builder’s written request for an internal review within the time for an internal review application – I consider that the extension should be granted.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3).

[2] The owners claim to have first noticed a problem with a blocked toilet on 13 January 2014 and to have contacted the builder around that time.  The builder says it has no record of being contacted by the owners in relation to a blocked toilet or being notified of the alleged defect until late September 2016.  It is not necessary or appropriate, in considering this application, to make any findings on whether the owners contacted the builder earlier.

[3] See, for example, Cardillo v Queensland Building Services Authority [2011] QCAT 574 at [18].

[4] Since there is no specific requirement for use of an approved form or the like, it may be arguable that Mr Lukritz’s email in fact constituted an internal review application.  However, this may not directly assist the builder as, even if that were so, the application would, after 28 days, have been taken to have been decided against the builder: QBCC Act, s 86C(3), with the result that the application for external review would still be out of time, albeit by a shorter period (though it is not immediately clear how or whether notice of such a deemed decision, from  is required to be given); or to have lapsed on the making of the application for external review: s 86A(3). As these issues were not explored closely at the hearing, and since it is not necessary for current purposes, I do not examine them further.

[5] QBCC Act, s 3(c).

[6] Timothy Peter Jensen v Queensland Building and Construction Commission [2017] QCAT 232, [94].

[7] QBCC Act, s 3(b).

[8] QBCC Act, s 87A(2).

Close

Editorial Notes

  • Published Case Name:

    Pantha Homes QLD Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    Pantha Homes QLD Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2017] QCAT 456

  • Court:

    QCAT

  • Judge(s):

    Member Olding

  • Date:

    12 Dec 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Cardillo v Queensland Building Services Authority [2011] QCAT 574
2 citations
Jump To
Cite 1 - [2011] QCAT 574
Cite 2 - [2011] QCAT 574
Jensen v Queensland Building and Construction Commission [2017] QCAT 232
2 citations
Jump To
Cite 1 - [2017] QCAT 232
Cite 2 - [2017] QCAT 232

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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