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Smith v Queensland Building and Construction Commission[2021] QCAT 397

Smith v Queensland Building and Construction Commission[2021] QCAT 397

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Smith & Anor v Queensland Building and Construction Commission [2021] QCAT 397

PARTIES:

MELISSA SMITH

CAMERON SMITH

(applicants)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR271-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

4 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

  1. The application to extend time is refused.
  2. The proceeding is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the applicant filed an application to review a decision out of time – where the applicant filed an application for an extension of time – whether the application for an extension of time should be granted.

Queensland Building and Construction Commission Act 1991 (Qld), s 87.

Queensland Building and Construction Commission Regulation 2003 (Qld) sch 2C, s 19

Queensland Building and Construction Commission Regulation 2018 (Qld) sch 6, s 19.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3), s 33(4)(a), s 47, s 61(1)(a), s 67WA, s 67WC(1)(d).

Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229.

Creswick v Creswick & Ors; Tabtill Pty Ltd & Ors v Creswick [2011] QCA 66.

Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34.

Kentwell v R (2014) 252 CLR 601.

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. [1]
    The applicants, Mr and Mrs Smith, had a swimming pool constructed by Mr Chad Wallace.
  2. [2]
    On 25 September 2019, the Smiths lodged a complaint with the Queensland Building and Construction Commission (QBCC) about the construction of the swimming pool. The complaint referred to the swimming pool not being level.
  3. [3]
    A QBCC building inspector undertook an inspection of the pool on 14 January 2020. The inspector prepared a report dated 14 January 2020. The report identified two items of defective building work:
    1. (a)
      Item 1: installation of swimming pool defective and not in accordance with the requirements of AS 1839:1994 Swimming Pools – premoulded fibre-reinforced plastic installation, clause 7.2 Pool drainage. The builder failed to install subsoil drainage around the swimming pool.
    2. (b)
      Item 2: installation of undersized swimming pool filter cartridge which will not sufficiently keep the water clean.
  4. [4]
    The building inspector considered item 2 to be a structural defect. Item 1 was considered to be a non-structural defect.
  5. [5]
    On 27 March 2020, the QBCC made a decision that neither item 1 nor item 2 were covered under the Queensland Home Warranty Scheme terms of cover (‘the reviewable decision’).
  6. [6]
    On 16 April 2021, the applicants filed an application to review the reviewable decision. On that date the applicants also filed an application to extend the time to file the review application.
  7. [7]
    The application to extend time falls for determination.

Applications to review – extensions of time to commence proceedings

  1. [8]
    A person affected by a reviewable decision may apply to the tribunal for a review of the reviewable decision as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).[1]
  2. [9]
    An application to review a reviewable decision must be filed within 28 days after the applicant is notified of the decision.[2] The tribunal may extend the period within which a person must make an application.[3]
  3. [10]
    The relevant factors to be considered when a party seeks to extend the time to file an application to review a decision are:
    1. (a)
      Whether there is a satisfactory explanation for the delay;
    2. (b)
      The merits of the applicant’s case;
    3. (c)
      Whether extending time will result in prejudice to any adverse party;
    4. (d)
      The length of the delay;
    5. (e)
      Whether it is in the interests of justice to grant the extension.[4]

Consideration

  1. [11]
    I will address each of these considerations by reference to the submissions by the parties.

Explanation for the delay

  1. [12]
    The Smiths offer the following reasons for the delay in filing the review application:
    1. (a)
      During the period late 2019 to March 2021, the personal and financial circumstances of the Smiths prevented them from appropriately considering their rights and obtaining legal advice with respect to the reviewable decision. These circumstances principally related to Mr Smith’s health. The Smiths also say that the effects of the COVID-19 pandemic significantly diminished their ability to seek assistance with their legal affairs;
    2. (b)
      The Smiths misinterpreted information they received from the QBCC and mistakenly believed that their only option in respect of tribunal proceedings was to commence a claim against the builder for a building dispute;
    3. (c)
      In or about January 2020, Mr Smith’s deteriorating health meant that Mrs Smith was required to ‘take charge of the QBCC complaint matter’;
    4. (d)
      On 20 April 2020 the Smiths lodged a complaint with the Office of the Queensland Ombudsman in relation to the reviewable decision, which was subsequently dismissed;
    5. (e)
      The Smiths were not aware of their entitlement to have the reviewable decision externally reviewed until advised of this by a solicitor on or about 16 March 2021;
    6. (f)
      Between 18 March 2021 and 9 April 2021, the Smiths were awaiting the results of investigations by a structural engineer in relation to rectification of the defects in the construction of the swimming pool.
  2. [13]
    In reply submissions, the Smiths expanded upon the issues with Mr Smith’s health and their limited financial circumstances. The essence of the Smiths’ submissions remained the same.
  3. [14]
    In response, the QBCC says that the Smiths have offered no satisfactory explanation for their delay in filing the review application. Notwithstanding the adverse personal circumstances faced by the Smiths, the QBCC says that the misinterpretation of information they received from the QBCC is not a good reason for granting the extension of time. The QBCC says that the Smiths chose to pursue a number of other claims rather than filing the review application.
  4. [15]
    No doubt the circumstances faced by the Smiths since 2019 have been difficult. Having said this, I have some reservations about the explanation for the delay in filing the review application.
  5. [16]
    The reviewable decision contains clear information about the Smiths’ rights to have the decision internally reviewed or externally reviewed. The particular information provided by the QBCC which was misinterpreted by the Smiths is not elaborated upon in their submissions. In any event, their misunderstanding of what their legal entitlements were is not in my view a satisfactory explanation for not filing the review application. It seems to me that this misunderstanding or misinterpretation is likely to be the real reason the review application was not filed. Support for this conclusion can be found in the fact that the Smiths pursued other avenues in respect of the issues regarding the swimming pool, specifically the complaint to the Ombudsman and the commencement of civil proceedings in the tribunal against Mr Wallace. It is clear that the Smiths were able to pursue these other avenues notwithstanding the adverse circumstances they faced at the time.
  6. [17]
    The explanation for the delay offered by the Smiths does not weigh in favour of granting the extension of time.

The merits of the Smiths’ case

  1. [18]
    That the building work undertaken by Mr Wallace is defective is not in dispute. The dispute in the present case relates to whether the defects are subject to coverage under the statutory insurance policy. 
  2. [19]
    The Smiths say that the QBCC erred in making the decision:
    1. (a)
      The decision references the QBCC Regulation which was not in effect when the relevant policy of insurance was entered into;
    2. (b)
      The decision incorrectly refers to item 1 of the claim as relating to ‘filter cartridge/pump’ and not the construction of the swimming pool;
    3. (c)
      The decision to disallow item 1 on the basis that it was a non-structural defect is inconsistent with a previous tribunal decision;
    4. (d)
      Item 2 of the claim by the Smiths was identified in the initial QBCC inspection report as structural and the claim in respect of this item should therefore have been allowed. 
  3. [20]
    In response, the QBCC says that the Smiths prospects of success in the proceedings are poor.
  4. [21]
    As to the arguments by the Smiths relating to the reference to the QBCC regulation in the decision, the QBCC says that the substantive provisions in the different versions of the regulation are identical and only the numbering of the provisions is different.
  5. [22]
    The QBCC says that the original complaint by the Smiths related only to item 1 and that item 2 was raised by the Smiths at the time of the inspection by the QBCC building inspector.
  6. [23]
    The QBCC says that item 1 is non-structural defective building work and item 2 is structural defective building work. The QBCC says that both item 1 and item 2 are exempt from cover under the statutory insurance scheme. The QBCC acknowledges that the reviewable decision should have referred to item 1 as being the difference in the water level and the pool level of the swimming pool which was exempt from cover under the Scheme in either Schedule 6, s 19(a)(i) of the 2018 regulation and/or schedule 2C, s 19(a)(i) of the 2003 regulation. 
  7. [24]
    The building contract between the Smiths and Mr Wallace was entered into in August 2018. The Queensland Building and Construction Commission Regulation 2018 (the 2018 regulation) commenced on 1 September 2018. Prior to the commencement of the 2018 regulation, the Queensland Building and Construction Commission Regulation 2003 (the 2003 regulation) was in force.
  8. [25]
    Section 19 of Schedule 2C of the 2003 regulation provided:

19 No entitlement to assistance for particular loss

The consumer is not entitled to claim assistance mentioned in section 15 for any of the following—

  1. (a)
    if the primary insurable work is for the erection, construction or installation of a swimming pool—
  1. (i)
    a defect in the work for the swimming pool that is not a structural defect; or
  1. (ii)
    surfacing of an area outside the coping for the swimming pool; or
  1. (iii)
    work associated with the erection, construction or installation of the swimming pool, including, for example, paving, supplying or installing water features, swimming pool slides, diving boards and swimming pool equipment and housings; or
  1. (iv)
    steps for the swimming pool that are not fixed structures;
  1. (b)
    if the primary insurable work is for the erection or construction of a related roofed building and the slab for the building is constructed other than under the contract for carrying out the work—damage to the building caused or contributed to by the slab;
  1. (c)
    if the primary insurable work is for an existing residence or related roofed building—damage to the residence or building that is—
  1. (i)
    not directly caused by the carrying out of the work; or
  1. (ii)
    not directly contributed to by the carrying out of the work.
  1. [26]
    The 2003 regulation was repealed on 1 September 2018. Section 19 of Schedule 6 of the 2018 regulation provides:

19 No entitlement to assistance for particular loss

The consumer is not entitled to claim assistance mentioned in section 15 for any of the following—

  1. (a)
    if the primary insurable work is for the erection, construction or installation of a swimming pool—
  1. (i)
    a defect in the work for the swimming pool that is not a structural defect; or
  1. (ii)
    surfacing of an area outside the coping for the swimming pool; or
  1. (iii)
    work associated with the erection, construction or installation of the swimming pool, including, for example, paving, supplying or installing water features, swimming pool slides, diving boards and swimming pool equipment and housings; or
  1. (iv)
    steps for the swimming pool that are not fixed structures;
  1. (b)
    if the primary insurable work is for the erection or construction of a related roofed building and the slab for the building is constructed other than under the contract for carrying out the work—damage to the building caused or contributed to by the slab;
  1. (c)
    if the primary insurable work is for an existing residence or related roofed building—damage to the residence or building that is—
  1. (i)
    not directly caused by the carrying out of the work; or
  1. (ii)
    not directly contributed to by the carrying out of the work.
  1. [27]
    As can be seen, the relevant provisions from the 2003 regulation and the 2018 regulation, s 19(a)(i) and s 19(a)(iii), are in identical terms.
  2. [28]
    The parties are in dispute about whether item 1 is structural defective building work. The Smiths say it is, the QBCC says it isn’t.
  3. [29]
    The evidence in relation to item 1, such as it is at the present time, is largely contained in the initial inspection report of Mr Michael Hulme, a QBCC building inspector. Mr Hulme inspected the swimming pool on 14 January 2020. Mr Hulme identified item 1 as a non-structural defect. In essence, the defect identified is the failure by the builder to ensure appropriate subsoil drainage around the pre-moulded swimming pool to relieve conditions that may arise where the external water pressure on the walls and floor of the swimming pool exceeds the internal water pressure and where the surrounding ground level rises above the normal operating water level of the swimming pool. The result in the case of the Smiths’ swimming pool, is the lifting of one side of the pool. 
  4. [30]
    As has been referred to above, the statutory insurance scheme does not provide coverage for defective building work in respect of the construction of a swimming pool if the defect is not structural nor does the scheme provide coverage in respect of the installation of pool equipment.
  5. [31]
    A ‘structural defect’ for ‘primary insurable work’ is defined in both the 2003 regulation and the 2018 regulation as, inter alia: [5]
  1. (b)
    if the work is for a swimming pool—a defect in the work that allows water to escape through the shell of the swimming pool; or
  1. (c)
    if the work is on or for a residence, related roofed building or swimming pool—a defect in the work that adversely affects the health or safety of persons who occupy or use the residence, building or swimming pool;
  1. [32]
    The Smiths place reliance upon the decision of the tribunal in Factory Direct Pools Pty Ltd v Queensland Building Services Authority[6] to support their contention that item 1 is a structural defect. In Factory Direct Pools the tribunal considered whether defective building work was structural or non-structural in the context of a decision made by the QBCC (then the QBSA) to issue a direction to rectify. That case involved the application of the ‘Rectification of Building Work’ Policy. That Policy has no application for present purposes. The reliance by the Smiths on Factory Direct Pools is misplaced.
  2. [33]
    There is no evidence in the present case to suggest that the defect constituted by item 1 allows water to escape through the shell of the swimming pool. Nor is there any evidence that suggests item 1 adversely affects the health or safety of persons using the swimming pool. It is therefore difficult to apprehend how item 1 is a structural defect for the purposes of s 19 of schedule 2C of the 2003 regulation or s 19 of schedule 6 of the 2018 regulation.
  3. [34]
    The QBCC concedes that item 2 is structural defective building work. That concession is properly made. However, the QBCC says that item 2 is exempt from cover under s 19(a)(iii) of both the 2003 and the 2018 regulation. As has been referred to earlier, a consumer is not entitled to claim for work associated with the erection, construction, or installation of a swimming pool, including, for example, paving, supplying or installing water features, swimming pool slides, diving boards and swimming pool equipment and housings.
  4. [35]
    In his report, Mr Hulme addresses item 2 in the following way:

The installation of the undersized swimming pool cartridge filter installed – Astral ZX150 is considered defective as it adversely affects the health or safety of persons using the swimming pool, due to the undersized filter will not sufficiently keep the water clean.

  1. [36]
    The evidence in relation to item 2 is scant however it seems reasonably apparent that the cartridge filter likely falls within the meaning of ‘swimming pool equipment’. On this basis, the policy of insurance would exclude coverage of item 2.
  2. [37]
    In their submissions the Smiths say that ‘(t)he combination of incorrect references to sections of the legislation, the omission, misdescription and confusion of the items of the complaint render the Decision grossly erroneous and nonsensical… On the face of the Decision document, it is clear that it would be almost impossible for a lay consumer to locate the correct sections of the legislation to fully understand the Decision.’
  3. [38]
    The relevance of this submission is not entirely apparent. Certainly, the Smiths do not suggest that the manner in which the decision was drafted contributed to their delay in filing the review application. Nor does the submission engage with the substantive issues to which I have earlier referred. I accept that the reviewable decision might be said to be poorly drafted and contains a singular error in the description of item 1 but these are not matters that are relevant to the Smiths’ prospects of success. In a merits review the task of the tribunal is to make the correct and preferable decision. The tribunal will make factual findings regarding items 1 and 2 and will apply the relevant statutory provisions to arrive at the correct and preferable decision. In this case, whether the reviewable decision contains an error may be relevant to judicial review, but it is not relevant in a merits review.
  4. [39]
    For the reasons I have set out, the Smiths’ prospects of success in the proceedings are poor. This factor weighs against granting the extension of time.

Prejudice

  1. [40]
    Relevant to this consideration is the prejudice which may be suffered by the QBCC if the extension of time is granted. The QBCC concedes that it is unable to identify any prejudice it would suffer should the extension be granted.
  2. [41]
    This factor does not weigh against the granting of the extension.

Length of the delay

  1. [42]
    The review application was filed by the Smiths almost 12 months after the time to do so had expired. The delay is significant. Whilst not determinative of the application to extend time, it is a factor that weighs against granting the extension particularly in view of my conclusion that the explanation for the delay is not particularly persuasive.

Whether it is in the interests of justice to grant the extension

  1. [43]
    In the context of an application to extend time to appeal, Fraser JA said the following in Creswick v Creswick; Tabtill Pty Ltd v Creswick:[7]

An applicant for such an extension must show that strict compliance with the rules will work an injustice, having regard to the circumstances including the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties of the grant or refusal of the application, and the prospects of the applicant succeeding in the appeal.

  1. [44]
    The application of this consideration may be illustrated by way of example: where the explanation for a delay may be poor however the applicant’s case is strong, the interests of justice may favour the grant of an extension of time; conversely, if the explanation for delay is satisfactory but the prospects of success are poor, the interests of justice will not favour granting an extension of time.  The discretion to extend time must be exercised according to the facts of the case.
  2. [45]
    While time limits operate to give finality to litigation, the principle of finality is not a discrete consideration in deciding whether to grant an extension of time.[8]  However an applicant for an extension of time must be able to show special and substantial reasons for the extension.
  3. [46]
    Here, I have concluded that the delay by the Smiths in filing the application has not been satisfactorily explained. I have also concludedthat the Smiths’ prospects of success in the proceedings are poor.
  4. [47]
    I am not persuaded that it is in the interests of justice for the extension of time to be granted.

Conclusion

  1. [48]
    The Smiths have failed to establish sufficient grounds upon which the the application to extend time should be granted. The application is therefore refused.
  2. [49]
    The refusal of the application means that the application  to review the proceedings has been filed out of time. The proceeding lacks substance and should be dismissed.[9] I make orders accordingly.

Footnotes

[1]Queensland Building and Construction Commission Act 1991 (Qld), s 87 (‘QBCC Act’).

[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3), s 33(4)(a) (‘QCAT Act’).

[3]  Ibid, s 61(1)(a).

[4]Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229 at [9].

[5]Queensland Building and Construction Commission Regulation 2003 (Qld) sch 2C s 19; Queensland Building and Construction Commission Regulation 2018 (Qld) sch 6 s 19.

[6]  [2013] QCAT 34.

[7]Creswick v Creswick & Ors; Tabtill Pty Ltd & Ors v Creswick [2011] QCA 66.

[8]Kentwell v R (2014) 252 CLR 601.

[9]  QCAT Act, s 47.

Close

Editorial Notes

  • Published Case Name:

    Smith & Anor v Queensland Building and Construction Commission

  • Shortened Case Name:

    Smith v Queensland Building and Construction Commission

  • MNC:

    [2021] QCAT 397

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    04 Nov 2021

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
Creswick v Creswick [2011] QCA 66
2 citations
Jump To
Cite 1 - [2011] QCA 66
Cite 2 - [2011] QCA 66
Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229
2 citations
Jump To
Cite 1 - [2011] QCAT 229
Cite 2 - [2011] QCAT 229
Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34
2 citations
Jump To
Cite 1 - [2013] QCAT 34
Cite 2 - [2013] QCAT 34
Kentwell v The Queen (2014) 252 CLR 601
2 citations
Jump To
Cite 1 - (2014) 252 CLR 601
Cite 2 - (2014) 252 CLR 601

Cases Citing

Case NameFull CitationFrequency
Lopez v Presbyterian and Methodist Schools Association [2022] QCATA 1622 citations
1

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