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My Home Builders Qld Pty Ltd v Queensland Building and Construction Commission[2018] QCAT 27

My Home Builders Qld Pty Ltd v Queensland Building and Construction Commission[2018] QCAT 27

CITATION:

My Home Builders Qld Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 27

PARTIES:

My Home Builders Qld Pty Ltd

(Applicant)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

OCR265-17

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

DELIVERED ON:

9 January 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application to stay a decision made on 21 November 2017 is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – where decision of Queensland Building and Construction Commission to cancel a building licence – where Applicant applied for a review of the decision – where Applicant applied for stay of the decision pending review – whether it is desirable to stay the decision until the review is determined

PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – OTHER MATTERS – where decision of Queensland Building and Construction Commission to cancel a building licence – where Applicant applied for a review of the decision – where Applicant applied for stay of the decision pending review – whether it is desirable to stay the decision until the review is determined

Queensland Building and Construction Commission Act 1991 (Qld), s 48

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22

Burch v Office of Fair Trading (No 2) [2016] QCAT 435

Crinis v Ray White Paradise Group [2016] QCATA 90

Cook’s Construction Pty Ltd v Stork Food Systems Pty Ltd [2008] QCA 322

Deputy Commissioner Stewart v Kennedy [2011] QCATA 254

APPEARANCES:

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).

REPRESENTATIVES:

 

APPLICANT:

Johanson Lawyers

RESPONDENT:

Holding Redlich

REASONS FOR DECISION

  1. [1]
    My Home Builders Qld Pty Ltd (“My Home”) has applied for a review of a decision of the Queensland Building and Construction Commission (QBCC) made on 20 November 2017 to suspend its licence pursuant to section 48(j) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).  It has also applied for a stay of that decision pending determination of the review application.
  2. [2]
    QBCC opposes the stay.
  3. [3]
    The stay application was determined on the papers on 9 January 2018.  I determined that the application should be refused.  My reasons are set out below.
  4. [4]
    The material relied on by My Home is its stay application filed on 21 November 2017, and an affidavit of its sole director/shareholder Nikola Grulovic sworn on 27 November 2017.
  5. [5]
    QBCC relies on statements of Michelle Lockton dated 15 December 2017 and Michelle Cummins dated 14 December 2017 and the written submissions of its lawyers, Holding Redlich dated 15 December 2017.

Tribunal’s power to grant stay

  1. [6]
    The Tribunal may grant a stay if review proceedings have started and if it considers it desirable having regard to certain matters including the interest of the person who may be effected by the refusal of the stay, any submissions by the decision maker and the public interest.[1]
  2. [7]
    An application for stay must establish the following cumulative criteria to be successful:
    1. A reasonably arguable case for relief in the substantive proceedings;
    2. A refusal would cause material detriment to the applicant; and
    3. The balance of convenience favours the granting of the stay.[2]
  3. [8]
    The factors to be considered in determining a balance of convenience include:
    1. Whether the review may be rendered nugatory if the stay is not granted;
    2. The impact of the stay on both parties; and
    3. The public interest.[3]
  4. [9]
    The basis of QBCC’s decision to suspend is that in respect of a number of contracts My Home has:
    1. Received payments in advance of completion of work;
    2. Failed to progress works diligently and as required contractually;
    3. Failed to pay insurance premiums within the statutory timeframes;
    4. Failed to comply with document production requirements;
    5. Failed to provide accurate financial statements to QBCC; and
    6. Failed to meet its obligations under work place health and safety legislation.
  5. [10]
    QBCC submits that the stay should be refused because:
    1. The review application has poor prospects of success;
    2. A stay is not in the public interest or the interests of the building industry generally; and
    3. My Homes has failed to demonstrate any factors which would compel a Tribunal to grant a stay.

Arguable case

  1. [11]
    The review proceedings are at an early stage.  No witness statements have been filed by My Home.  The application for review, stay application and supporting affidavit of Mr Grulovic do not address the various allegations in any significant detail and while I believe a better attempt could have been made to do so, I accept that My Home could only be expected having regard to the urgency of the stay application to address those various allegations in the most general of terms.
  2. [12]
    In respect of some of those allegations, it is possible to conclude on the material lodged in the Tribunal by QBCC that My Home’s prospects of success are poor.  For example, late payment or otherwise of insurance premiums in each case is simply a matter of establishing the date of the contract and the date payment was received.  These dates do not appear to be contested by My Home.
  3. [13]
    That is, however, not the case in relation to the allegations of payment in advance, failure to progress work diligently and failure to provide accurate financial statements.  Those matters, if contested, and My Home’s material indicates that they will be, would involve in all probability expert evidence which would take some time and expense to prepare and file in the Tribunal.
  4. [14]
    QBCC refers me to the decision of the Court of Appeal in Cook’s Construction Pty Ltd v Stork Food Systems Pty Ltd.[4]  The Court’s statement that poor prospects favour a refusal of the stay is subject to the qualification that it applies “in cases where this court is able to come to a preliminary assessment of the strength of the appellants case”.[5]
  5. [15]
    In my view, no such assessment is possible in this case and in those circumstances I am not prepared to find that My Home does not have an arguable case.

The public interest

  1. [16]
    The objects of the QBCC Act include regulation of the building industry to ensure the maintenance of proper standards in the industry and the achievement of a reasonable balance between the interest of building contractors and consumers.[6]
  2. [17]
    QBCC submits, and I accept, that the objectives of the licencing provisions of the QBCC Act are protective of the public and that a strict application of the provisions is necessary to protect consumers and building contractors from being put at risk of financial and other harm.[7]
  3. [18]
    In Deputy Commissioner Stewart v Kennedy[8] the Appeal Tribunal referring to a number of decisions[9] drew a distinction between stays in ordinary civil litigation cases and stays of decisions made under laws designed to protect the public:

But a far greater significance is the public aspect of staying a dismissal in police disciplinary proceedings.  This is not ordinary civil litigation in which the contest is between two parties where a major consideration is whether it is reasonable to hold successful party out from the benefit of a judgment.  In Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 70 ALJR 306, 309 Kirby J observed that stays of the operation of decisions made under laws designed to protect the public ‘are in a class different from cases involving no more than the suspension of the operation of orders affecting to private litigants only’. The example given by His Honour was of the deregistration of a professional lawyer, but his observation was general in relation to the disciplinary process under laws designed to protect the public.[10]

…

In my view cogent reasons are needed before staying an order of dismissal of a police officer following a regular investigation and determination.[11]

  1. [19]
    In my view those observations apply here.

Detriment to My Home

  1. [20]
    Mr Grulovic says that the suspension of My Home’s licence “is causing and will continue to cause hardship for my company”,[12] that the owners of the various properties “will be adversely affected, by way of lack of progress if the suspension of my licence were to continue”.[13]
  2. [21]
    My Home’s material does not provide any evidence that it can meet its contractual obligations and bring the unfinished homes to completion.  The only financial material before the Tribunal are the company accounts to 30 June 2017 annexed to the affidavit of Ms Locton and without further commentary, these provide little assistance in assessing that.  My Home has filed no material and made no submissions in that regard.
  3. [22]
    While I accept that My Home, its directors, supplies, subcontractors and the homeowners with unfinished houses will suffer as a result of the continuation of the suspension, that in itself does not justify staying the decision.  The grant of a stay may lead to far worse consequences for all of those parties if My Home is allowed to trade and ultimately fails. There is nothing in My Home’s material which could satisfy the Tribunal that it has the capacity and financial means to bring the works in progress to completion.
  4. [23]
    In my view, My Home’s material does not address with any particularity, the balance of convenience argument.  It does not establish that a refusal of the stay will make the review proceeding nugatory.
  5. [24]
    In all the circumstances, the public interest favours the refusal of the stay application.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(4).

[2]Crinis v Ray White Paradise Group [2016] QCATA 90, 8 [39].

[3]Burch v Office of Fair Trading (No 2) [2016] QCAT 435, 4 [11].

[4][2008] QCA 322; Respondents written submissions, [21].

[5]Cook’s Construction Pty Ltd v Stork Food Systems Pty Ltd [2008] QCA 322, 4 [13].

[6]Queensland Building and Construction Commission Act 1991 (Qld), s 3.

[7]Respondents written submissions, [58]-[59].

[8][2011] QCATA 254.

[9]Bryant v Commonwealth Bank of Australia (1996) 90 LGERA 126; Robb v Law Society of the Australian Capital Territory, unreported, Federal Court of Australia, Finn J, No G4 of 1996, 21 June 1996.

[10]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, 6 [29].

[11]Ibid, 7 [35].

[12]Affidavit of Nikola Grulovic dated 27 November 2017, [6].

[13]Affidavit of Nikola Grulovic dated 27 November 2017, [11].

Close

Editorial Notes

  • Published Case Name:

    My Home Builders Qld Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    My Home Builders Qld Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2018] QCAT 27

  • Court:

    QCAT

  • Judge(s):

    Member Holzberger

  • Date:

    09 Jan 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
Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306
1 citation
Jump To
Cite 1 - (1996) 70 ALJR 306
Bryant v Commonwealth Bank of Australia [1996] HCA 3
1 citation
Jump To
Cite 1 - [1996] HCA 3
Bryant v Commonwealth Bank of Australia (1996) 90 LGERA 126
1 citation
Jump To
Cite 1 - (1996) 90 LGERA 126
Burch v Office of Fair Trading (No.2) [2016] QCAT 435
2 citations
Jump To
Cite 1 - [2016] QCAT 435
Cite 2 - [2016] QCAT 435
Cook's Construction Pty Ltd v Stork Food Systems Aust Pty Ltd[2008] 2 Qd R 453; [2008] QCA 322
3 citations
Jump To
Cite 1 - [2008] QCA 322
Cite 2 - [2008] QCA 322
Cite 3 - [2008] QCA 322
Crinis v Ray White Paradise Group [2016] QCATA 90
2 citations
Jump To
Cite 1 - [2016] QCATA 90
Cite 2 - [2016] QCATA 90
Deputy Commissioner Stewart v Kennedy [2011] QCATA 254
4 citations
Jump To
Cite 1 - [2011] QCATA 254
Cite 2 - [2011] QCATA 254
Cite 3 - [2011] QCATA 254
Cite 4 - [2011] QCATA 254

Cases Citing

Case NameFull CitationFrequency
Willmott v Carless [2021] QCATA 1321 citation
1

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