QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Romark Design Constructions Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 455 |
PARTIES: | ROMARK DESIGN CONSTRUCTIONS PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | GAR267-18 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 20 December 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: | The application for miscellaneous matters filed on 12 November 2018 and the amended application for miscellaneous matters filed on 22 November 2018 are dismissed. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DETENTION, INSPECTION AND PRESERVATION – INSPECTION OF PROPERTY – where applicant seeking to enter and inspect on property of non-party – whether statutory authorisation for such entry Queensland Building and Construction Commission Act 1991 (Qld), s 97 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61 Melbourne Corporation v Barry (1922) 31 CLR 174 Plenty v Dillon (1991) 171 CLR 635 |
REPRESENTATION: | |
Applicant: | M Campbell |
Respondent: | S Monaghan |
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
An order pursuant to section 62(1) of the Queensland Civil and Administrative Tribunal Act 2009 requiring the owner of the property at 76 Mallawa Drive, Palm Beach in the State of Queensland to grant access for the Applicant’s representatives and their experts to conduct an inspection of the items outlined in Direction to Rectify and/or Complete Number 103619 and Direction to Rectify and/or Complete Number 103690.
Pursuant to section 62(1) of the Queensland Civil and Administrative Tribunal Act 2009, Romark Design Constructions applies to the Queensland Civil and Administrative Tribunal (“the Tribunal”) for the following orders:
1. The owner of the property at 76 Mallawa Drive, Palm Beach in the State of Queensland is required to grant access for the purposes outlined at paragraph 2, to the following people:
(a) Mr Myron Cause from Timber Help; and
(b) Mr Don Dixon of Property Inspections Team; and
(c) Mr Steve Belyea from S.R.B. Consulting Engineers; or
(d) Instead of Mr Belyea, Mr Peter Wright of Hughes, Beal & Wright Pty Ltd.
2. The purposes of the attendance is limited to the following:
(a) to conduct a visual inspection of the four timber posts that support the large patio roof structure located at the rear of the dwelling; and
(b) to take photographs and/or video of the timber posts referred to in paragraph 2(a) above; and
3. Access to the Property shall be given, subject to notice being given in compliance with paragraph 4, during the weeks commencing Monday, 26 November 2018 or Monday, 3 December 2018.
Access is to be given for the purposes outlined in paragraph 2 to the person outlined in paragraph 1, following the Applicant giving the Property’s owner 48 hours prior written notice by email of the date and time the persons mentioned in paragraph 1 will be attending the property; and
4. The Property’s owner is only obliged to give the persons outlined in paragraph 1, access to the Property for the purposes described in paragraph 2, for a period of no more than 2 hours on date and time advised to the Property’s owner pursuant to paragraph 4.
The tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
It must be borne in mind that there is this common law right; and that any interference with a common law right cannot be justified except by statute—by express words or necessary implication. If a statute is capable of being interpreted without supposing that it interferes with the common law right, it should be so interpreted.
(1) A member of the tribunal may, if it is necessary to do so for the purposes of a proceeding before the tribunal –
(a) enter and inspect a building or land relevant to the proceeding accompanied by the parties to the proceeding; or
(b) authorise a person in writing to take the following action and report to the tribunal on the action taken –
(i) enter and inspect a building or land relevant to the proceeding;
(ii) take photographs, video film or an image of the building or land or anything relevant to the proceeding;
(iii) carry out tests approved by the tribunal.
The Applicant concedes it is open for the Tribunal to determine that the applicant has been afforded an opportunity to access the Property and to inspect the allegedly defective building work. The Applicant concedes it was invited to an inspection of the Property with the QBCC’s building inspector before the decisions were made to issue the directions to rectify to the Applicant. The Applicant accepts that it chose not to attend the site inspection.
But the applicant says it believed that it was not required to attend the QBCC’s site inspection because the Applicant had already outlined its response to the complaint made by the Property’s owner in emails to the QBCC before the inspection. The Applicant did not understand or appreciate the potential consequences of failing to take the opportunity to attend the QBCC’s site inspection.
