Wyatt v Queensland Building and Construction Commission
[2018] QCAT 396
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- Unreported Judgment
- Wyatt v Queensland Building and Construction Commission[2018] QCAT 396
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Wyatt v Queensland Building and Construction Commission[2018] QCAT 396
Wyatt v Queensland Building and Construction Commission[2018] QCAT 396
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Wyatt & Anor v Queensland Building and Construction Commission [2018] QCAT 396 |
PARTIES: | DONNA WYATT (first applicant) CASEY WYATT (second applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | GAR163-17 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 26 November 2018 |
HEARING DATE: | 14 December 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Holzberger |
ORDERS: | The application is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – General administrative review – where the review application specified a particular decision by date but particulars implied reference to another earlier decision- whether a decision to allow a claim on the statutory insurance scheme is reviewable – whether a decision to accept a tender is reviewable – jurisdiction to review a scope of works decision out of time – whether scope of works unreasonable unnecessary or excessive Queensland Building and Construction Commission Act 1991 (Qld), s 71A(2), s 86, s 86F Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3), s 61 Aramac Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 364 Queensland Building and Construction Commission v Watkins [2014] QCA 172 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | Self-represented |
Respondent: | L Tassell, solicitor of HWL Ebsworth Lawyers |
REASONS FOR DECISION
- [1]Donna Wyatt and Casey Wyatt (‘the Wyatts’) have applied to the Tribunal to review a decision of the Queensland Building and Construction Commission (‘QBCC’) made on 20 April 2017 (‘the 20 April 2017 decision’) to confirm the Wyatts’ claim under the Statutory Insurance Scheme had been approved for an amount of $15,860.00 for rectification of defective work in the construction of a patio on their property, based on a quote received from Envate Pty Ltd (‘Envate’) for the amended scope of works.
- [2]In their application, the Wyatts specifically identify the decision to be reviewed as the 20 April 2017 decision, but describe details of the decision to be reviewed as ‘QBCC selection of repair method to patio structure (60424)’.[1]
- [3]The Wyatts’ complaint is that the rectification method proposed by Envate will result in the lowering of the roof line, which they say will adversely affect the functionality and appearance of the structure.
- [4]The QBCC should, they say, have selected the tender of Echo Build Pty Ltd which proposed a different rectification method, a flyover patio roof, which raised rather than lowered the roofline.
- [5]In written submissions to the Tribunal, the QBCC says:
- (a)The 20 April 2017 decision is not a reviewable decision for the purposes of s 86 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’);
- (b)If the 20 April 2017 decision is a reviewable decision, the application is out of time; and
- (c)If the application can be said to be an application for review of the amended scope of works, it is out of time.
- (a)
- [6]For the reasons set out below, I agree with those submissions and dismiss the application.
- [7]The application clearly identifies the decision the Wyatts seek to review as the 20 April 2017 decision. There is no evidence which suggests that another decision was made by the QBCC on that date.
- [8]
I am pleased to confirm that your claim has been approved for an amount of $15,860. This amount is based on the quote received from Envate Pty Ltd for the amended scope of works.
- [9]It did not, in so many words, identify that Envate had been selected as the ‘approved contractor’ or the ‘rectifying builder’, but the QBCC submits that that is the effect of it.[3]
- [10]The decision then is a decision:
- (a)To confirm approval of the Wyatts’ claim in the amount of $15,860.00; and
- (b)If I accept the QBCC’s submission, to confirm the acceptance of Envate’s tender.
- (a)
- [11]Section 86 of the QBCC Act contains a list of decisions which are reviewable decisions.
- [12]While a decision to disallow a claim under the statutory scheme is a reviewable decision,[4] a decision to allow a claim is not.
- [13]A decision to accept a tender, similarly, is not one of the decisions particularised in s 86(1).
- [14]Further, s 71A(2) gives the QBCC the power to ‘accept any tender that it considers appropriate’.
- [15]Section 86 does not confer on the Tribunal jurisdiction to review the 20 April 2017 decision.
- [16]The application, despite identifying the 20 April 2017 decision, nonetheless clearly seeks to attack the amended scope of works decision.
- [17]I do not believe that that in itself is enough to make it an application to review the amended scope of works decision, however, even if it is, that does not result in a different outcome.
- [18]The submissions of the respondent filed on 31 October 2017 were made in support of an application by the QBCC of that date to dismiss the application. That application had not been determined by the time of the hearing.
- [19]In their response to that miscellaneous matters application, the Wyatts submitted that they were unaware of ‘the specific restriction imposed by the QBCC Act regarding non-reviewable decisions’,[5] and had not been advised about them by the QBCC, despite being in regular contact, and that they were ‘willing to amend [their] QCAT application to dispute the scope of works’.[6]
- [20]The response detailed the amendments they sought to the amended scope of works.
- [21]If the application can be said to be an application to review the amended scope of works, it is not in dispute that it was made more than 28 days after service of the amended scope of works decision.
- [22]Section 86F of the QBCC Act provides that a decision about the scope of works to be undertaken under the Statutory Insurance Scheme is not a reviewable decision if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, applied to the Tribunal for a review of the application.[7]
- [23]
- [24]The QBCC submits that allowing five business days for the delivery of the amended scope of works to the building contractor, unless the building contractor applied to the Tribunal for a review of that decision, it ceased to be a reviewable decision on 27 April 2018.[10]
- [25]The building contractor made no application for review before 27 April 2018, or at all.[11] The application by the Wyatts was filed on 26 June 2018. In those circumstances, the QBCC submits the Tribunal does not have jurisdiction to review the amended scope of works decision if the application can indeed be taken to be an application for review of that decision.
- [26]On that point, in their response, the Wyatts say:
- (a)That as the time limitation is defined with reference to the time the building contractor has to apply, it does not apply to them;
- (b)In their dealings with the QBCC, attempting to resolve their disputes, they were not advised of the time limitations and their dealings were effectively inconsistent with such a limitation; and
- (c)The problems with the amended scope of works decision only became apparent to them after the Envate tender was accepted by the QBCC.
- (a)
- [27]The decision of whether the Tribunal has the power to extend time, despite s 86F was considered by the Court of Appeal in Queensland Building and Construction Commission v Watkins.[12]
- [28]Douglas J said:[13]
The language of the section, in prescribing that QCAT must not review decisions of the nature described in the section if 28 days have elapsed since the relevant decision or direction, makes it correct to conclude that it is a mandatory provision having substantive rather than procedural effect.
- [29]The Tribunal had, in effect, no jurisdiction to extend time and the provisions of s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), which can provide relief from procedural requirements (including the extension of time) cannot be relied on.
- [30]Both Watkins and Aramac were applications brought by building contractors.
- [31]The Wyatts’ submission is effectively that the operation of s 86F applies only to review applications made by building contractors.
- [32]If that interpretation is accepted, the time limit for their review application is determined by s 33(3) of the QCAT Act, that is 28 days, but the Tribunal may extend that time pursuant to s 61 of the QCAT Act.
- [33]I accept that homeowners are affected by scope of works decisions, and accordingly, are potential applicants for review of those decisions. I do not understand the logic of excluding an application for review by a homeowner, or person other than the building contractor, from the method of calculation of the limitation period in s 86F, however, that does not affect the operation of the section.
- [34]The rules of statutory interpretation require me to give the words of the section its plain ordinary meaning. The section quite clearly provides that a scope of works decision ceases to be reviewable on a particular date, namely the date 28 days after service of the decision on the building contractor, unless the building contractor applies for a review.
- [35]If during that period the Wyatts applied for a review, that application would have been lodged within the time the decision is reviewable.
- [36]To accept the Wyatts’ interpretation would effectively require a rewriting of the section to specify the failure to file a review application within 28 days made the decision not reviewable by the building contractor alone.
- [37]It was noted in both Watkins and Aramac that the QBCC Act requires such an application to be made expeditiously to avoid delays in the rectification process.
- [38]In those circumstances, the Wyatts’ remaining submissions, that the QBCC did not advise them of the limitation and encouraged the continuation of negotiations, and that the shortcomings of the amended scope of works decision was not apparent until after the Envate quote was produced, do not, even if accepted, assist them.
- [39]Those considerations well may be relevant to the Tribunal in deciding whether to exercise its discretion to extend time pursuant to s 61 of the QCAT Act, but that section does not apply here. The Tribunal has no discretion to extend time or forgive the failure to lodge within time.
- [40]The Tribunal does not have jurisdiction to review the amended scope of works decision.
- [41]While in those circumstances it is not necessary to consider the merits of the Wyatts’ application, assuming it is an application to review the amended scope of works decision, I will do so for completeness. I accept the Wyatts’ evidence that rectification in accordance with the amended scope of works will produce a result which is unacceptable to them functionally and aesthetically, however that in itself is not sufficient to overturn the amended scope of works decision.
- [42]To succeed the Wyatts must show that the works particularised in the amended scope of works decision are inadequate or excessive, or that the method of rectification is unreasonable.
- [43]QBCC relies on the evidence of William Shipp, a director of Envate and holder of an open builder’s licence; and Christopher O'Shannessy, QBCC Technical Claims Manager and a building licence holder, to the effect that the works are reasonable and necessary to rectify the fault, and would rectify those faults.[14]
- [44]Mr Wyatt submitted, and the Tribunal notes, that it is difficult to find a suitably qualified witness prepared to provide a report and appear at a hearing, but in the absence of such evidence, the evidence of Mr Shipp and Mr O'Shannessy must be accepted.
- [45]If the Wyatts’ application is a review of the 20 April 2017 decision, the Tribunal does not have jurisdiction to hear it.
- [46]If the application is an application to review the amended scope of works decision:
- (a)The Tribunal does not have jurisdiction to hear it because it ceased to be a reviewable decision before the application was filed; and
- (b)It cannot succeed in any event because the Wyatts have failed to provide any evidence that the works set out in the decision are unreasonable, unnecessary or excessive.
- (a)
- [47]Accordingly, the application is dismissed.
Footnotes
[1]Application to review decision filed 26 June 2017, Part B p 4.
[2]Respondent’s statement of reasons, para [46], Exhibit ‘SOR-30’.
[3]Respondent’s submissions dated 31 October 2017, para [2.3], [2.6].
[4]QBCC Act, s 86(1)(h).
[5]Response 7 December 2017, para [1].
[6]To be inserted.
[7]QBCC Act, s 86F.
[8]Affidavit of Matthew Twin, sworn 27 October 2017, para [23].
[9]Ibid, para [24].
[10]Respondent’s submissions dated 31 October 2017, para [3.8].
[11]Affidavit of Matthew Twin, sworn 27 October 2017, para [24].
[12][2014] QCA 172.
[13]Queensland Building and Construction Commission v Watkins [2014] QCA 172, para [16]. See also Aramac Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 364.
[14]Affidavit of W Shipp, sworn 21 November 2017, paras [20] and [21]; Affidavit of C O'Shannessy, sworn 31 October 2017, paras [14] and [21].