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Murtagh v Queensland Building and Construction Commission[2018] QCAT 258

Murtagh v Queensland Building and Construction Commission[2018] QCAT 258

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Murtagh v Queensland Building and Construction Commission [2018] QCAT 258

PARTIES:

PETER STEPHEN MURTAGH

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR058-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

2 August 2018

HEARING DATE:

18 April 2018

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

  1. The application for review filed on 17 March 2017 is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  2. The application for miscellaneous matters filed on 9 June 2017 is dismissed.
  3. The application for miscellaneous matters filed on 5 July 2017 is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL  - SUMMARY JUDGMENT FOR RESPONDENT - consequential damage caused by building work at adjacent property – internal review decision made not to issue a direction to rectify – where rectification work already undertaken by third party not connected to the proceedings – where no utility in issuing Direction to Rectify – where incomplete work the subject of the complaint caused by third party – where unfair to issue Direction to Rectify.

Queensland Building and Construction Commission Act 1991 (Qld), s 71H, s 71I, s 72, s 72A, 86, s 86E

Queensland Building and Construction Regulation 2003 (Qld), Schedule 1AA

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 47

Fancourt v Mercantile Credits Pty Ltd (1983) 154 CLR 87

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Ms N Thirumoorthi, Solicitor, Queensland Building and Construction Commission

REASONS FOR DECISION

Introduction

  1. [1]
    The principal application before me is an application by the QBCC to dismiss an application for review brought by Mr Murtagh. Mr Murtagh had brought an application to review an internal decision by the QBCC not to issue a Direction to Rectify in relation to defective or incomplete work on Mr Murtagh’s property.
  2. [2]
    After filing his review application Mr Murtagh subsequently filed two Applications for Miscellaneous Matters: one[1] seeking clarification from the QBCC in relation to a factual finding made by a QBCC Inspector in the Internal Review Inspection Report dated 6 February 2017 and the second[2] seeking Directions from the Tribunal, in effect, requiring QCAT to direct the QBCC to answer a list of questions relating to the review proceedings. The QBCC responded to both Applications prior to the Dismissal Hearing. In my view, in each case that Response was sufficient and there is no need for further Directions from the Tribunal. In any event, I have determined that the best course is to proceed first to determine the application to dismiss under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) as determination of that application may render the other Applications otiose.
  3. [3]
    My task is not to conduct the review, but to consider whether the application for review should be dismissed or struck out. Having said that, in determining that application, it will be necessary to consider whether the application for review is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.[3]
  4. [4]
    The parties at the conclusion of the Dismissal Hearing were directed to provide further submissions as to whether, under s 71I of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) Dean Gallagher could be taken to have carried out building work in relation to the relevant properties. The QBCC provided such submissions on 16 May 2018.

Background

  1. [5]
    The applicant, Mr Murtagh is the owner of 82B Minnie Street, Southport. Mr Murtagh has experienced problems with his water service pipe ever since his neighbour undertook building work which involved excavating under Mr Murtagh’s driveway. Essentially the work undermined the edge of the applicant’s driveway and allowed the substrate supporting the underlying pipework to subside which left the pipe unsupported. This has led to a series of breaks in the pipe and resulted in water leakage.
  2. [6]
    The building works to the neighbouring commercial property at 82 Minnie Street were carried out by Gallagher Development Group Pty Ltd (‘Gallagher Development Group’) from early June 2009 to 29 June 2009. This company was deregistered on 11 November 2012.
  3. [7]
    The licensee, Mr Gallagher, undertook rectification work in relation to the water service pipe on 3 September 2015 which involved removal of a section of concrete driveway, rectification of the broken pipe and re-instatement of the driveway (‘the first leak’). The work was done in response to a Direction to Rectify (No 41458) issued to Gallagher Property Group Pty Ltd (Gallagher Property Group) on 4 August 2015. The QBCC admit they made an error issuing the Direction to Gallagher Property Group rather than to Gallagher Development Group.
  4. [8]
    Sometime after that rectification work was completed, Mr Murtagh discovered another break in the pipe located between 3.8 and 4.5 metres from the first break (‘the second leak’). The second leak was repaired by MCM Plumbing and Gasfitting on 23 September 2016.
  5. [9]
    On 10 October 2016 Mr Murtagh lodged a complaint form regarding the second leak with the QBCC. Attached to the complaint was a tax invoice from MCM Plumbing and Gasfitting. It became clear during the Dismissal Hearing that Mr Murtagh was unhappy with the repair undertaken by MCM Plumbing and Gasfitting. In particular because they had left unfilled a large hole in the concrete which was used to facilitate the repair.
  6. [10]
    One of the main issues of contention between the parties was whether the second leak was caused by the rectification works to the first leak (in which case any Direction to Rectify would be within time) or whether it was a new item caused by the original building work done completed in 2009.
  7. [11]
    At first the QBCC considered the entire existing water line, excluding the repaired section, was defective.[4] The QBCC notified Mr Murtagh of its decision to issue a Direction to Rectify to the Gallagher Property Group to rectify or complete building work.
  8. [12]
    However, Mr Gallagher, director of Gallagher Property Group requested an internal review of that decision. On internal review the second break was found to be a new defect caused by the original building work and not the result of rectification works  undertaken by Mr Gallagher. Accordingly, the QBCC made a new decision on 20 February 2017 not to issue a direction to rectify. The decision was stated to have been made primarily due to the expiry of the statutory timeframe for issuing a direction.[5]
  9. [13]
    On 17 March 2017 Mr Murtagh filed an application for review. Mr Murtagh claims that the internal decision is wrong because it was based on an incorrect finding by the QBCC inspector, namely, that the second leak was a new item and not due to the failure of the rectification of the previous break. Mr Murtagh’s position is that the second leak is consequential damage caused by the rectification work to the first leak.
  10. [14]
    The QBCC maintain that the second leak is a new item, unrelated to the rectification carried out to the first leak and that any Direction to Rectify would, accordingly, be outside the relevant statutory timeframe. Alternatively, assuming the second leak was caused by the rectification work, that the rectification work would not be “building work” within the meaning of s 2 of Schedule 1AA of the Queensland Building and Construction Regulation 2003[6] and therefore that any consequential damage could not be the subject of a Direction to Rectify.[7] Further, in either case, the QBCC argue that rectification work has already been undertaken by a third party and, in those circumstances, it is unnecessary, or alternatively unfair, to issue the Direction.

Section 47 of the QCAT Act

  1. [15]
    s 47(1) of the QCAT Act provides:

47 Dismissing, striking out or deciding if unjustified proceeding or part

(1) This section applies if the tribunal considers a proceeding or a part of a proceeding is—

(a) frivolous, vexatious or misconceived; or

(b) lacking in substance; or

(c) otherwise an abuse of process.

(2) The tribunal may—

(a) if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or

(b) for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding—

(i) make its final decision in the proceeding in the applicant’s favour; or

(ii) order that the party who brought the part before the tribunal be removed from the proceeding; or

(c) make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding or part.

Example: See section 108 for the tribunal’s power to order that the costs be paid before it continues with the proceeding.

(3) The tribunal may act under subsection (2) on the application of a party to the proceeding or on the tribunal’s own initiative.

(4) The tribunal’s power to act under subsection (2) is exercisable only by—

(a) the tribunal as constituted for the proceeding; or

(b) if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.

  1. [16]
    Pursuant to s 47(2)(a) the tribunal may exercise its discretion to strike out or dismiss a proceeding or part of a proceeding brought by an applicant. If a proceeding has been dismissed or struck out under s 47 a proceeding of the same kind relating to the same matter can not be started before the tribunal without leave.[8]
  2. [17]
    The power applies to both the original jurisdiction and review jurisdiction of the Tribunal.
  3. [18]
    The power should be exercised sparingly so that claims that are groundless or which lack merit are barred.[9] If there is a real question to be tried then dismissal at an interlocutory stage is not appropriate. [10]

Relevant statutory framework

  1. [19]
    The Tribunal’s review jurisdiction is the jurisdiction conferred on it by an enabling Act to review a decision made by another entity under that Act known as a ‘reviewable decision’.[11] In this case the enabling Act is the QBCC Act.
  2. [20]
    In exercising its review jurisdiction, the Tribunal must decide the review in accordance with the QCAT Act and the relevant enabling Act.[12] The Tribunal is to arrive at its decision by way of a fresh hearing on the merits and that decision must be the ‘correct and preferable’ one.[13]
  3. [21]
    The decision the subject of the review application is the internal decision of the QBCC, received by the applicant on 20 February 2017, not to issue a Direction to Rectify in respect of the second leak.
  4. [22]
    This is a reviewable decision pursuant to s 86E(b) of the QBCC Act.
  5. [23]
    The power to issue a direction to rectify is that prescribed by s 72 of the QBCC Act. That section provides:

72 Power to require rectification of building work and remediation of consequential damage

  1. (1)
    This section applies if the commission is of the opinion that—
  1. (a)
    building work is defective or incomplete; or
  1. (b)
    consequential damage has been caused by, or as a consequence of, carrying out building work.
  1. (2)
    The commission may direct the person who carried out the building work to do the following within the period stated in the direction—
  1. (a)
    for building work that is defective or incomplete—rectify the building work;
  1. (b)
    for consequential damage—remedy the damage.
  1. (3)
    In deciding whether to give the direction, the commission may take into consideration all the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work (including the terms of any warranties included in the contract).
  1. (4)
    The period stated in the direction must be at least 28 days unless the commission is satisfied that, if the direction is not required to be complied with within a shorter period—
  1. (a)
    a substantial loss will be incurred by, or a significant hazard will be caused to the health or safety of, a person because of the defective or incomplete building work or consequential damage; or
  1. (b)
    the defective or incomplete building work, or consequential damage, will cause a significant hazard to public safety or the environment generally.
  1. (5)
    The commission is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.

Example for subsection (5)—

The commission might decide not to give a direction for the rectification of building work because an owner refuses to allow a building contractor to return to the owner’s home or because an owner’s failure to properly maintain a home has exacerbated the extent of defective building work carried out on the home.

…

  1. (6)
    To remove any doubt, it is declared that the commission may act under this section in relation to consequential damage whether or not an owner or occupier has made a request under section 71J.
  1. [24]
    Under s 72, therefore, a Direction to Rectify can be issued in two circumstances:
    1. (a)
      To rectify building work that is defective or incomplete; or
    2. (b)
      To rectify consequential damage that has been caused by carrying out building work.
  2. [25]
    ‘Building work’ is defined to include any work prescribed by regulation.[14]
  3. [26]
    ‘Consequential damage’ is defined as damage:
  1. (a)
    caused by, or as a consequence of, carrying out building work at a building site (the relevant site), regardless of any intention, negligence or recklessness of the person carrying out the work; and
  1. (b)
    to a residential property at the relevant site, containing the relevant site or adjacent to the relevant site.[15]
  1. [27]
    In relation to the second leak, a Direction to Rectify could be issued if the Tribunal was of the opinion that the Direction was required to rectify consequential damage caused by carrying out “building work”. 
  2. [28]
    Assuming the second leak was consequential damage caused by the original building work (and which led to the first leak), it has been rectified by MCM Plumbing and Gasfitting. There is no longer any need for, or utility in, a Direction.
  3. [29]
    Mr Murtagh, when questioned at the Dismissal Hearing, said that there was still work requiring rectification in that when MCM Plumbing and Gasfitting rectified the leak they were forced to make a hole in the concrete. That hole is still there and Mr Murtagh would like a Direction to Rectify issued to fix it.
  4. [30]
    The problem with complying with Mr Murtagh’s request is that any such Direction could not be issued against the entity responsible for the underlying defective building work because it was not responsible for the later ‘incomplete work’ of which Mr Murtagh now complains. The QBCC has submitted that requiring an entity to rectify work in circumstances where there has been intervening rectification works would be unfair pursuant to s 72(5) of the QBCC Act. I agree that it would be unfair in the circumstances of this case.
  5. [31]
    It is also relevant that, had the second leak not been rectified, the Tribunal would have had difficulty issuing a Direction to Rectify stemming from building work completed in June 2009. Section 72A(4) of the QBCC Act provides, relevantly, that a direction to rectify cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed unless the tribunal is satisfied, on application by the commission, that there is in the circumstances sufficient reason for extending the time for giving the direction.
  6. [32]
    Here there has been no such application by the QBCC and the time frame of 6 years and 6 months has been exceeded.
  7. [33]
    It was argued by Mr Murtagh that the Direction to Rectify could attach to the building work done by Mr Gallagher in September 2015 to rectify the first leak. Again, even if the Tribunal was to accept that this was the case, it would not cure the fact that the rectification work required to fix the second leak has been completed, albeit not to Mr Murtagh’s satisfaction.
  8. [34]
    Further, as the rectification work undertaken by Mr Gallagher cost less than $3 500 it cannot be classified as ‘building work’ pursuant to s 2 of Schedule 1AA of the Queensland Building and Construction Regulation 2003 (Qld). It follows that the Tribunal would be unable to form an opinion that consequential damage, here the hole in the driveway, was caused by ‘building work’ as required by s 72(2) of the QBCC Act.
  9. [35]
    I note that the QBCC also argued, in any event, that it was unable to issue a Direction to Rectify because the company responsible for the original building work, Gallagher Development Group, no longer exists, having been deregistered on 11 November 2012. This argument ignores that the Direction to Rectify could have been issued to Mr Gallagher either pursuant to s 71I(m) on the basis he was a nominee for Gallagher Development Group at the time the work was carried out, or pursuant to s 71I(h) and s 71I(2) of the QBCC Act. While I have formed the opinion that, on balance, there is no arguable case that a Direction to Rectify should be issued, I have not placed any store in this argument.

Conclusion

  1. [36]
    In view of the above, I find the application for review is misconceived and lacking in substance.
  2. [37]
    Accordingly, the application for review is dismissed pursuant to s 47 of the QCAT Act. It follows that the Applications for Miscellaneous Matters filed by the applicant on 9 June 2017 and 5 July 2017 are also dismissed.

Footnotes

[1] Application for Miscellaneous Matters filed by Applicant on 9 June 2017.

[2] Application for Miscellaneous Matters filed by Applicant on 5 July 2017.

[3] QCAT Act, s 47.

[4] Initial Inspection Report by Mr David Adams, dated 23 November 2016.

[5] Internal Review Decision, dated 20 February 2017.

[6] On the basis that the work completed on 3 September 2015 would have cost less than $3 300.00.

[7] Queensland Building and Construction Commission Act 1991, s 72(1)(b).

[8] QCAT Act, s 49(2).

[9] Dundral Pty Ltd t/as Anchor Plumbing Services v Orton [2013] QCAT 604, [4].

[10] Fancourt v Mercantile Credits Pty Ltd (1983) 154 CLR 87, 99.

[11] Barry Pitt Constructions Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 482, [24].

[12] QCAT, s 19.

[13] QCAT, s 20.

[14] QBCC Act, s 71H(2).

[15] QBCC Act, s 71H(1).

Close

Editorial Notes

  • Published Case Name:

    Murtagh v Queensland Building and Construction Commission

  • Shortened Case Name:

    Murtagh v Queensland Building and Construction Commission

  • MNC:

    [2018] QCAT 258

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    02 Aug 2018

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
Barry Pitt Constructions Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 482
1 citation
Jump To
Cite 1 - [2016] QCAT 482
Dundral Pty Ltd trading as Anchor Pumping Services v Orton [2013] QCAT 604
1 citation
Jump To
Cite 1 - [2013] QCAT 604
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
2 citations
Jump To
Cite 1 - (1983) 154 CLR 87
Cite 2 - (1983) 154 CLR 87

Cases Citing

Case NameFull CitationFrequency
Budulica v Optima Construction Services [2020] QCAT 2352 citations
Dunlop v the Body Corporate for Port Douglas Queenslander [2024] QCAT 882 citations
Hayward v Queensland Building and Construction Commission [2021] QCAT 1691 citation
Hayward v Queensland Building and Construction Commission [2021] QCAT 1801 citation
Maldes v Queensland Building and Construction Commission [2022] QCAT 3592 citations
Myers v Queensland Building and Construction Commission [2020] QCAT 5171 citation
Purje v Department of Education and Training [2020] QCAT 3032 citations
Tanna v Queensland Building and Construction Commission [2023] QCATA 812 citations
1

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