Tanna v Queensland Building and Construction Commission
[2021] QCAT 170
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- Unreported Judgment
- Tanna v Queensland Building and Construction Commission[2021] QCAT 170
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Tanna v Queensland Building and Construction Commission[2021] QCAT 170
Tanna v Queensland Building and Construction Commission[2021] QCAT 170
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Tanna v Queensland Building and Construction Commission [2021] QCAT 170 |
PARTIES: | MICHELLE MARGARET TANNA (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | GAR108-20 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 10 May 2021 |
HEARING DATE: | On Papers Hearing |
HEARD AT: | Brisbane |
DECISION OF: | Member Browne |
ORDERS: | The application to review filed on 23 March 2020 is dismissed. |
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where homeowner purchased property – where homeowner complained about the building work performed – where decision made not to issue a direction to rectify work to the builder – whether discretion to issue a direction under s 72 is limited by s 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether the time limit for issuing a direction to rectify has expired – whether there is power to extend the time limit for issuing a direction under s 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) – tribunal’s power on review generally Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 72A(4), s 86(1)(e), s 86A, s 86E Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 19, s 20, s 23, s 47, s 164(1) Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor [2020] QCATA 6 John Fairfax & Sons v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465 JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502 Owen v Menzies [2013] 2 Qd R 327 Skaines v Kovac Enterprises Pty Ltd [2007] 1 Qd R 98 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Self-represented by an in-house legal officer 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]On 23 March 2020, Ms Tanna applied to the Tribunal to review a decision made by the Queensland Building and Construction Commission identified in the application to review as being decision of ‘602049; 730049; 752054’ and made on 25 February 2020.
- [2]Relevantly, in the application to review Ms Tanna describes what she would like to happen in the review proceeding.[1] Ms Tanna states that the Commission failed to direct the remediation of a serious breach by the builder of her property when it had an opportunity to do so and, amongst other things, states that she would like the Commission to apply for an extension of time so that Hilton Ulrich (‘the builder’) be directed by them to remedy defects.
- [3]On 10 July 2020, Ms Tanna applied to the Tribunal to join the builder as a party to the review proceedings. The Commission applied to the Tribunal on 3 September 2020 to dismiss the application to review on the basis that it is lacking in substance and ought to be dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).[2]
- [4]Ms Tanna’s application to join a party to a proceeding and the Commission’s application to dismiss the application to review are listed before me. In my view, if the Commission’s application to dismiss is successful and Ms Tanna’s application for review is dismissed, there is no utility in considering Ms Tanna’s application to join the builder to the review proceeding because the matter will be at an end. That said, I am therefore satisfied that it is appropriate in this matter to firstly determine the Commission’s application for dismissal. Further to that, I am satisfied it is appropriate to determine the Commission’s application to dismiss on the papers on the basis that neither party has requested an oral hearing and both parties have filed written submissions in compliance with the Tribunal’s Directions dated 15 September 2020.[3]
The Commission’s application to dismiss
- [5]The Commission contends that Ms Tanna’s application to review identifies a number of decisions made by various employees of the Commission. The Commission relies on Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor[3] in which the Appeal Tribunal said and I accept that the QCAT Act requires that a separate review application is to be filed in respect of each decision sought to be reviewed.[5]
- [6]The Commission refers me to Ms Tanna’s submissions filed in support of the application to review and contends that because Ms Tanna is asking the Tribunal to review multiple decisions relating to her complaint, the application to review is therefore invalid.[6]
- [7]Further to that, the Commission contends that Ms Tanna seeks relief that cannot be granted by the Tribunal on review.[7] The Commission also contends that its decisions identified by Ms Tanna in her written submissions as reviewable decisions made on 11 October 2019 and 16 December 2019, respectively, are not reviewable decisions pursuant to s 86(1) of the Act.
- [8]The Commission does accept, however, that its decision of 25 February 2020 is a reviewable decision and that it is open to the Tribunal to set aside the decision (made on internal review) and substitute it with a decision to give a direction to rectify to the builder. Relevantly, the Commission made a decision on 25 February 2020 to not direct rectification of the work because it is more than six years and six months since the building work was carried out; and to disallow a claim under the statutory insurance scheme.
- [9]The Commission, contends, however, that it is not the correct and preferable decision in all of the circumstances of this matter to direct the builder to rectify work as the time limit to give a direction to rectify to the builder had already expired prior to the filing of the application to review.[8] Further to that, the Tribunal cannot permit an extension of time for the Commission to give a direction to rectify to the builder unless such an application is made by the Commission. The Commission argues that the Tribunal has no power under the Act to order the Commission to make such an application.[9]
- [10]In responding to the Commission’s application to dismiss, Ms Tanna says nothing prohibits the Tribunal from proactively extending the time available for the Commission to issue a direction to the builder. Ms Tanna says that this matter has caused, as stated, ‘great distress and unnecessary cost’ and has compromised the safety of her house.[10]
- [11]It is convenient to set out below the relevant factual matters that are uncontroversial as between the parties by way of background to the matter:
- (a)The builder constructed a unit complex on or about 11 April 2013.
- (b)Ms Tanna purchased the property on 15 September 2016.
- (c)Ms Tanna complained to the Commission about the building work performed by the builder on 19 September 2019 described in the complaint as termite damage to the internal staircase.
- (d)A building inspector for the Commission inspected the property on 13 December 2019 to assess Ms Tanna’s complaint and produced an inspection report dated 16 December 2019.
- (e)The Commission made decisions about whether to direct the builder to rectify work and whether to allow a claim under the statutory insurance scheme.
- (a)
- [12]For reasons discussed below, the date of completion of the building work is important in this matter because it is the critical date for calculating time relevant to the issuing of a direction to rectify under the Queensland Building and Construction Commission Act 1991 (Qld (‘the Act’). Relevantly, s 72A(4) of the Act provides that the Commission may only give a direction to rectify to a person responsible for defective work within the relevant time limit of six years and six months from the date the work was completed.
- [13]In the present matter, the Commission submits that work was completed on the property on 11 April 2013; and the time for the issuing of a direction to rectify work under the Act expired on 11 October 2019.[11]
What is the power to direct the builder to rectify work?
- [14]The power to issue a direction to rectify to a builder comes from s 72 of the Act. The question of whether to issue a direction to rectify involves the exercise of a discretion. The Commission or the Tribunal on review may take into consideration all of the circumstances it considers are reasonably relevant.[12]
- [15]Section 72A of the Act provides limitations in giving a direction to rectify such as, amongst other things, a direction to rectify cannot be given more than six years and six 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.[13]
What is the Tribunal’s power on review?
- [16]The Act confers power on the Tribunal to review a reviewable decision in circumstances where a person affected by the relevant decision has applied for a review. Section 86(1)(e) of the Act provides that a decision to give a direction to rectify or remedy or not to give the direction is a ‘reviewable decision’.
- [17]Relevantly, a person given notice of a reviewable decision may apply for internal review of that decision and any decision made on internal review becomes the decision to be reviewed before the Tribunal.[14]
- [18]The Tribunal on review is required to conduct a fresh hearing on the merits to produce the correct and preferable decision.[15]
- [19]The review process is commonly referred to as the Tribunal standing in the shoes of the decision-maker (the Commission), exercising the same powers as the Commission under the Act.
- [20]
- [21]The Tribunal, ‘albeit an inferior court of summary jurisdiction’,[18] only has the jurisdiction or power as granted by the QCAT Act or other enabling Act.[19] The Tribunal has no inherent powers as would exist in a superior court of general jurisdiction such as the Supreme Court. The Tribunal has ‘no powers, jurisdictions or authorities other than those authorised by the Act’.[20] It is a matter for the Tribunal to determine its own jurisdiction.[21]
- [22]The only remedy or order that the Tribunal on review may make is as provided under the QCAT Act subject to any modifying provision under the enabling Act, such as to, amongst other things, and as discussed above, confirm the reviewable decision or set aside the decision and substitute the decision or set aside the decision and return the matter to the decision-maker for reconsideration.
Should the application to review be dismissed?
- [23]I reject the Commission’s submission that Ms Tanna attempts to review a number of decisions made by the Commission. The application to review clearly identifies the Commission’s decision of 25 February 2020 as the reviewable decision. Indeed, Ms Tanna confirms in her written submissions that the review concerns the Commission’s decision to not direct the builder or otherwise seek an extension of time to direct the builder of her property to remedy defective building work and consequential damage.[22]
- [24]It is open for me to find that there is a reviewable decision identified in Ms Tanna’s application to review. The reviewable decision is the Commission’s decision of 25 February 2020 to not direct rectification of the work because it is more than six years and six months since the building work was carried out; and to disallow a claim under the statutory insurance scheme.[23]
- [25]It is clear from a fair reading of the Commission’s decision of 25 February 2020, that the reason for not issuing a direction to rectify and disallowing the claim under the statutory insurance scheme is because the relevant time limit of six years and six months since the building work was completed has now passed.[24]
- [26]It is noncontroversial that construction of Ms Tanna’s property was completed by the builder on 11 April 2013 and Ms Tanna purchased the property on 15 September 2016.[25] Ms Tanna complained about the building work performed by the builder to the Commission on 19 September 2019.
- [27]It is open for me to find that Ms Tanna complained to the Commission about the building work some years after she purchased the property. Further to that, the time limit in which to give a direction to rectify to the builder for the purposes of s 72A(4) of the Act expired six years and six months from 11 April 2013 being the date the work was completed by the builder.
- [28]I accept, as contended by Ms Tanna, that she complained about the building work performed on her property to the Commission before the time limit of six years and six months expired. The fact remains, however, that the time limit expired on 11 October 2019.
- [29]In my view there is no power for the Tribunal to extend the time limit unless as provided under s 72A(4) of the Act, the Commission has applied to the Tribunal to extend it. Indeed, a decision by the Commission not to seek an extension of time is not a reviewable decision for the purposes of s 86 of the Act.
- [30]Ms Tanna’s submission that nothing prohibits the Tribunal from proactively extending the time available for the Commission to issue a direction to the builder, misconstrues the effect of s 72A(4) of the Act. Section 72A(4) of the Act when read together with s 72 clearly limits the scope of discretion to issue a direction to rectify such that a direction to rectify cannot be given more than six years and six months after the building work was completed.[26]
- [31]There is no discretion to extend the time limit under s 72A(4) of the Act unless the Commission has made the application. In the present matter, the Commission has not applied to the Tribunal to extend the relevant time limit under s 72A(4) of the Act.
- [32]I am satisfied that it is appropriate in all of the circumstances of this matter to exercise my discretion under s 47 of the QCAT Act to dismiss the application to review. Relevantly, s 47 of the QCAT Act permits the tribunal to dismiss a proceeding or part of a proceeding if the tribunal considers a proceeding or a part of a proceeding is frivolous, vexatious or misconceived; or lacking substance; or otherwise an abuse of process.
- [33]In the present matter, the time for giving a direction to rectify has expired by virtue of s 72A(4) of the Act. There is no application before the Tribunal by the Commission to extend the time limit. There is no power to compel the Commission to apply to the Tribunal for an extension of the time limit. Although Ms Tanna complained to the Commission before the time limit for giving a direction (being six years and six months from the date of completion of the property) had expired, the Commission did not determine that a direction to rectify work should issue before the time expired nor did it apply to the Tribunal to extend the time for giving a direction to rectify. A failure to apply to extend the time limit is not a reviewable decision for the purposes of the Act.
- [34]I am satisfied it is appropriate in the circumstances of this matter to dismiss the application to review under s 47 of the QCAT Act on the basis that the application is misconceived or lacking in substance because I have found that the time limit for issuing a direction to rectify has expired and the Tribunal has no jurisdiction to extend the time limit unless the Commission has applied to do so. In exercising my discretion under s 47 of the QCAT Act, I have also considered the objects of the QCAT Act that include, amongst other things, to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.[27]
- [35]The appropriate order is that the application to review a decision filed on 23 March 2020 is dismissed. I order accordingly.
Footnotes
[1] Application to review filed 23 March 2020.
[2] Application for miscellaneous matters (to dismiss) and submissions in response to joinder application and in support of the application to dismiss filed on 3 September 2020.
[3] Application to dismiss the application for review and application to join a party were listed before the Tribunal for a decision on the papers on 21 April 2021.
[4] [2020] QCATA 6.
[5] Body Corporate for Alto Gladstone, [74] and see respondent’s submissions filed 3 September 2020, [66] to [72], inclusive.
[6] Ibid,
[7] Respondent’s submissions filed 3 September 2020, [73] to [83], inclusive. See also the applicant’s amended supporting submissions filed 7 August 2020.
[8] Respondent’s submissions filed 3 September 2020, [78] to [83], inclusive.
[9] Respondent’s submissions filed 3 September 2020, [82].
[10] See applicant’s submissions filed 6 October 2020.
[11] Respondent’s submissions filed 3 September 2020, [15].
[12] The Act, s 72(3).
[13] Ibid, s 72A(4).
[14] Ibid, s 86A and s 86E.
[15] QCAT Act, s 20.
[16] Ibid, s 24.
[17] Ibid, s 21.
[18] Owen v Menzies [2013] 2 Qd R 327, 345 (McMurdo P).
[19] QCAT Act, s 164(1) and see Owen v Menzies [2013] 2 Qd R 327, 345.
[20] John Fairfax & Sons v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465, 476 (McHugh JA).
[21] See JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502, [60], [35] citing Skaines v Kovac Enterprises Pty Ltd [2007] 1 Qd R 98, 100-101.
[22] See applicant’s response to the respondent’s application for dismissal filed 6 October 2020 and the application to review a decision.
[23] Ibid.
[24] Respondent’s statement of reasons and material filed 16 July 2020, p 723.
[25] See applicant’s amended submissions filed 7 August 2020.
[26] See applicant’s submissions filed 6 October 2020.
[27] QCAT Act, s 3.