Stephens v Queensland Building and Construction Commission
[2018] QCAT 281
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- Unreported Judgment
- Stephens v Queensland Building and Construction Commission[2018] QCAT 281
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Stephens v Queensland Building and Construction Commission[2018] QCAT 281
Stephens v Queensland Building and Construction Commission[2018] QCAT 281
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Stephens & Anor v Queensland Building and Construction Commission [2018] QCAT 281 |
PARTIES: | BILL STEPHENS (first applicant) MARIA STEPHENS (second applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | GAR348-17 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 14 August 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
ORDERS: | The application for administrative review GAR348-17 is dismissed. |
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – statutory time limit – where homeowners made complaint about a builder’s work outside the statutory time limit – where the QBCC did not request the Tribunal extend the time limit – whether the Tribunal could review the decision not to seek an extension of time from the Tribunal – whether the Tribunal had power under the QCAT Act to extend the time limit set under the enabling Act – whether a new time limit arose where a builder attended voluntarily to repair – where the QBCC applied to have the application for general administrative review struck out on the grounds that neither the QBCC nor the Tribunal could extend time in the circumstances where there was no request from the QBCC to do so Queensland Building and Construction Commission Act 1991 (Qld), s 72(2), s 72A(4), s 86(1)(e) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17(1), s 18(1), s 19(c), s 61(1) Bergin v Department of Housing and Public Works [2013] QCATA 190 Doolan v QBCC [2017] QCAT 58 Lowe v Aspley [2010] QCATA 59 McNab Constructions Australia Pty Ltd v QBSA [2012] QCAT 681 Plowman v Palmer (1914) 18 CLR 339 Russell v QBCC [2014] QCAT 094 Sedl v QBSA [2012] QCAT 2 Sendall v Howe & Anor [2012] QCATA 41 Smith v QBSA [2010] QCAT 448 Torea Pty Ltd v QBSA [2013] QCAT 4 |
REPRESENTATION: |
|
First Applicant: | Self-represented |
Second Applicant: | Self-represented |
Respondent: | Self-represented by E Ward |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
- [1]The applicants purchased a house in July 2011. It had been built in or about 2009. Practical completion of construction was on 25 August 2009, according to the applicants.
- [2]From about 2012 the applicant owners complained to the builder about water leaks. The builder went back and did some work on this in July 2015 and advised the applicants the leaks were fixed.
- [3]On 31 March 2017 there were more leaks and the builder was contacted by the owners. The builder claimed he had no obligation to come back again because he claimed to have fixed the leaks in 2015. He said the new leaks complained about in 2017 was the result of lack of maintenance on the part of the owners.
- [4]The owners complained to the Queensland Building and Construction Commission (‘QBCC’) on 18 May 2017 asking that the builder be directed to rectify defective building work causing the leaks
- [5]The QBCC responded that it could not do that because s 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the Act’) set a statutory time limitation for that and the time limit had expired.
- [6]The applicants commenced proceedings in the Tribunal seeking redress about the failure to issue a direction to rectify. They filed a building dispute application, which was wrong given what was sought was administrative review of the QBCC decision not to issue a direction to rectify to the builder.
- [7]The building dispute proceedings were converted by order of the Tribunal to an application for general administrative review. The QBCC has now brought an application within the general administrative review action to have the review proceedings struck out without the necessity of going to a hearing.
The Legislation
- [8]By s 72A(4) of the QBCC Act:
- (4)A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.
- [9]The time limit set by s 72A(4) was previously 6 years and 3 months, but that has now changed to 6 years and 6 months. The change does not impact the matter at hand.
The Positions of the Parties
- [10]The QBCC say on a plain reading of s 72A(4) neither the QBCC nor the Tribunal can issue a direction to rectify pursuant to s 72(2) of the Act if the statutory time limit has expired and there is no application to the Tribunal by the QBCC to extend time.
- [11]The date of practical completion identified by the owners was 26 August 2009.
- [12]The statutory time limit (increased to 6 years and 6 months) for giving a direction to rectify therefore expired on 26 February 2016. The owners complained well after that on 18 May 2017.
- [13]The QBCC submit there is a discretion to apply to the Tribunal for an extension of time and it rests with the QBCC. It cannot be exercised by the Tribunal as part of the subject proceedings. The QBCC do not intend to make such an application.
- [14]It is clear that the Tribunal is limited in the orders it can make on a review application. The Tribunal can only make a decision that the decision maker could have made under the enabling legislation when the original decision was made.[1]
- [15]Mr and Mrs Stephens say they have an explanation for any delay associated with their complaint to the QBCC. There was no significant rain event after the builder came back in 2015 and claimed to have fixed the leaks. They had to wait for rain. There was no significant rain event until Cyclone Debbie in March 2017 and it was only after that they realised the builder had not fixed the leaks. Accordingly the statutory time limits should not apply to their situation.
- [16]The owners also point to s 61(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) which provides a general power in the Tribunal to extend or shorten a time limit fixed by the QCAT Act or an enabling Act or the rules of the Tribunal. They say the time limit set under s 72A(4) should be extended by the Tribunal pursuant to that power.
- [17]
[33] By a letter dated 12 March 2010 (PC-7 to exhibit 39), Mr Cupitt advised the Sedls that their claim for assistance under the QBSA Statutory Insurance Scheme was declined and that the ability of the QBSA to direct the builder on the original building works expired as of 4 January 2009. It also advised that where a contractor has returned and performed rectification works, the rectified work is afforded a further six years and three months from the time of rectification in which the QBSA can direct the contractor to rectify. It advised that an inspector was assessing what works, if any, a direction to rectify could be issued upon.
[34] That statement concerning rectification works is in my view correct.
- [18]They say the builder in the case at hand did return within the 6 year and 3 month time limit and therefore according to Sedl they should be able to claim a further 6 year and 3 month time limit for the poor work done by the builder in trying to fix the leaks in 2015.
QCAT Power to Extend Time
- [19]By s 17(1) of the QCAT Act:
- (1)The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.
- (2)For this Act, a decision mentioned in subsection (1) is a reviewable decision …
- [20]By s 18(1):
- (1)The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.
- [21]By s 19(c):
In exercising its review jurisdiction, the tribunal—
- (a)must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
- (b)may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
- (c)has all the functions of the decision-maker for the reviewable decision being reviewed.
- [22]Accordingly an enabling Act must confer jurisdiction on the Tribunal to review a reviewable decision before the Tribunal can act. There is no general power to review the broad conduct or general decision making of a decision maker without an identifiable reviewable decision under an enabling Act.
- [23]By s 86(1)(e) of the QBCC Act, a decision to give a direction to rectify or remedy or not to give the direction is identified as a reviewable decision. But then s 72A(4) imposes the abovementioned time limit on making a decision to direct rectification of defective building work.
- [24]Section 61(1) of the QCAT Act allows the relaxation of procedural rules in matters coming before it but:
a discretion to relax procedural rules cannot avoid an inflexible, prescriptive statutory limitation. An unauthorised or prohibited act is a nullity, not a mere irregularity.[3]
- [25]Section 72A(4) is a prescriptive statutory provision that goes to the very power to issue a direction to rectify. It is not a matter of procedure but very much substance. The prescriptive statutory provision cannot be changed or extended by the mere procedural power granted the Tribunal under s 61(1).[4]
The Decision That Must Be Reviewed
- [26]It is important to accurately identify what decision is really sought to be reviewed by the owners. They complain about the failure of the QBCC to issue a direction to rectify. But where the time to do that has expired, s 72A(4) says the QBCC must take certain steps before any notice to rectify can be given after that time. It must first conclude that in the circumstances of the particular case there is sufficient reason for extending time, and then it must apply to the Tribunal and persuade the Tribunal that the circumstances justify the issue of a notice. Until those steps are taken the QBCC, and therefore the Tribunal, has no power to issue any direction to rectify.
- [27]The QBCC determination about the existence of circumstances of sufficient reason to apply to the Tribunal for an extension of time is not itself a reviewable decision listed under s 86. The failure to apply to the Tribunal for permission to issue a direction to rectify is the real complaint by the owners here, and that failure cannot be reviewed by the Tribunal.
Rectified Work
- [28]The owners also contend that the 6 year 3 month time limit was reset from 2015 when the builder came back and did work to fix the leaks. The comments by the learned Member in Sedl is relied on for that proposition.
- [29]But the circumstances in Sedl were entirely different to the matter at hand. Sedl principally concerned an issue about date of completion of the contract. The learned member himself distinguished his comments in Sedl on that basis in his subsequent decision of Torea Pty Ltd v QBSA.[5]
- [30]In Sedl what the learned member was alluding to when he said he agreed that where a contractor has returned and performed rectification works, and the rectified work is afforded a further six years and three months in which the QBSA may direct the contractor to rectify, was in the particular circumstances occurring there where the QBSA (now the QBCC) had already issued a direction to rectify defective work within time (ie within 6 years and 3 months of the work completing) and the work had been done. Then the rectified work (only) had a renewed time limit of 6 years 3 months wherein a direction to rectify could again be issued.
- [31]In Sedl there had been 3 directions to rectify different items of work within time.[6] There was a problem however identifying what work was done pursuant to the directions. Only work done pursuant to the directions to rectify qualified for another 6 years and 3 month time limit.[7] The general construction work was not covered outside the original time limit.
- [32]The matter at hand is entirely different. There were never any directions to rectify defective building work given. The complaint to the QBCC about leaks was outside the 6 years 3 month time limit when first made. Sedl does not assist the owners.
- [33]In so far as the owners say that the return of the builder in 2015 to fix leaks amounted to rectification work and the 6 year 3 month time limit was reset by that, I do not concur. There is no basis to argue thus, save in reliance on the comments made by the learned member in Sedl, where he said:
…where a contractor has returned and performed rectification works, the rectified work is afforded a further six years and three months from the time of rectification in which the QBSA can direct the contractor to rectify.[8]
- [34]The learned member himself explained that Sedl was principally concerned with an entirely different matter of date of completion and his comments were, I conclude, limited to work done pursuant to a validly issued direction to rectify. I see no basis upon which the argument can be extended to the present scenario where no direction to rectify has ever been given.
- [35]The reference in s 72A(4) is to ‘building work to which the direction relates was completed or left in an incomplete state’. The date of practical completion was 26 August 2009. The 6 year 3 month time limit commenced then with respect to all the work done constructing the house. It expired on 26 February 2017. There was no direction to rectify given for any work during the period concerned.
- [36]The owners state in the original building dispute application filed on 7 August 2017 that ‘our roof has leaked continually since October 2012 and it continues to leak to this day.’ The present complaint therefore clearly relates to the work done or poorly done in 2009. The 6 year 3 month (or now 6 year 6 month) time limit applies to that defective work (if defective as claimed), regardless that outside the purview of a QBCC direction to rectify the builder attended and attempted to fix problems associated with it during that period.
- [37]An application to the Tribunal by the QBCC for permission to issue a direction to rectify out of time is necessary. That application has not been made. The owners’ within application cannot succeed. The Tribunal cannot make any orders in the terms sought or offer other relief to the applicants. The application should be dismissed.
Footnotes
[1] McNab Constructions Australia Pty Ltd v QBSA [2012] QCAT 681, [6].
[2] [2012] QCAT 2.
[3] Bergin v Department of Housing and Public Works [2013] QCATA 190, [15], citing Plowman v Palmer (1914) 18 CLR 339, 348.
[4] Smith v QBSA [2010] QCAT 448, [30]; Doolan v QBCC [2017] QCAT 58, [9]; Lowe v Aspley [2010] QCATA 59, [11]; Sendall v Howe & Anor [2012] QCATA 41, [10].
[5] [2013] QCAT 4.
[6] [2012] QCAT 2, [27].
[7] What is and is not rectification work done pursuant to a direction to rectify can be difficult to establish. See Russell v QBCC, where the builder was given a direction to rectify defective building work and performed work. The work was considered unsatisfactory rectification work done pursuant to the direction to rectify by the QBCC but ultimately found to be performed by way of compromise of proceedings associated with the initial direction to rectify: [2014] QCAT 094, [9], [133]-[135].
[8] [2012] QCAT 2, [33].