Sensus Building Group Pty Ltd v QBCC
[2022] QCAT 26
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Sensus Building Group Pty Ltd v QBCC[2022] QCAT 26
- Add to List
Sensus Building Group Pty Ltd v QBCC[2022] QCAT 26
Sensus Building Group Pty Ltd v QBCC[2022] QCAT 26
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Sensus Building Group Pty Ltd v QBCC [2022] QCAT 26 |
PARTIES: | sensus Building Group Pty Ltd |
(applicant) | |
v | |
Queensland Building AND Construction Commission | |
(respondent) | |
APPLICATION NO/S: | GAR397-20 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 21 January 2022 |
HEARING DATE: | On the Papers |
HEARD AT: | Brisbane |
DECISION OF: | Member King-Scott |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where respondent claims application misconceived and lacking in substance – whether proceeding should be struck out – whether a decision by the Tribunal to direct the Commission issue a Direction to Rectify can be reviewed PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGEMENT FOR DEFENDANT OR RESPONDENT – where Tribunal has no jurisdiction Judicial Review Act 1991 (Qld) Queensland Building and Construction Commission Act 1991 (Qld) ss. 86, 86E and 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss. 24, 47 Christiansen & Anor v Queensland Building and Construction Commission [2020] QCAT 57 Dey v Victorian Railways (1949) 78 CLR 62 Dundral Pty Ltd v Orton [2013] QCAT 604 Felstead v Bundaberg Homes Pty Ltd [2016] QCAT 294 General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 Legal Services Commissioner v Leneham [2017] QCAT 96 McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QSC 057 |
APPEARANCES & REPRESENTATION: | |
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
Introduction
- [1]This is an application by the Queensland Building and Construction Commission (the Commission) to strike out the application by Sensus Building Group Pty Ltd (Sensus) to review a Direction to Rectify.
- [2]The review application seeks to review a Direction to Rectify 0106830 issued by the Commission on 16 September 2020. That Direction to Rectify followed upon a decision of this Tribunal, following a review, to amend a previous Direction to Rectify to add and further item. Sensus was not a party to the review application which was brought by the homeowners.
- [3]Understandably, Sensus is now aggrieved that it was not given an opportunity of disputing the decision to add a further item to the Direction to Rectify. I should interpolate here that Sensus has satisfactorily rectified the other two items of the Direction to Rectify.
- [4]Unfortunately, it is necessary to set out the history of the matter in some detail to understand the Commission’s application.
History
- [5]The history of the events leading up to the decision of the Tribunal to direct the Commission to give a Direction to Rectify is set out in the decision[1] of Member Kanowski in the homeowners’ application referred to earlier. I reproduce the relevant parts of the Member’s decision.
[8] The original construction contract was signed in March 2013 between Ms Christiansen and Ms Beale and Leda Homes Pty Ltd. In November 2013, the obligations of Leda Homes Pty Ltd were assigned to Queensland Custom Homes Pty Ltd. On 5 March 2015 Ms Christiansen and Ms Beale terminated that contract. They lodged a complaint form with QBCC for incomplete works. This was treated as a claim under the Queensland Home Warranty Scheme, which is the statutory insurance scheme administered by QBCC under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
[9] On 4 November 2015 QBCC approved the insurance claim in the sum of $111,636.52, and appointed Sensus to complete the building work as set out in a scope of works dated 15 September 2015 prepared by Sergon Building Consultants (‘Sergon’).
[10] On 7 December 2015 Ms Christiansen and Ms Beale entered into a contract with Sensus for the work. Sensus commenced work on or about 19 January 2016.
[11] Ms Christiansen and Ms Beale engaged Jeffrey Hills & Associates (‘JHA’) to conduct a pre-handover site inspection of the building work done by Sensus. JHA carried out its inspection on 24 March 2016.
[12] Also on 24 March 2016 Ms Christiansen and Ms Beale inspected the property and prepared a document headed ‘Inspection 24/03/2016’ containing a table with 65 ‘outstanding and incomplete’ items (‘24 March 2016 Table’). This document said it was to be read in conjunction with ‘the JHA Building Inspector’s report’ (‘JHA Report’). The JHA Report is dated 26 March 2016. It is 13 pages in length (not including photographs). It is headed ‘defects inspection’, and it lists numerous items said to be defects.
[13] On 1 April 2016, the 24 March 2016 Table was emailed from Sergon to Sensus, with a QBCC officer copied in.
[14] On 8 April 2016, Sensus issued a practical completion notice advising that it was intending to reach practical completion on 15 April 2016.
[15] On 15 April 2016 Sensus, Sergon, Ms Christiansen, Ms Beale and QBCC attended a handover inspection at the property and produced a draft Defects and Omissions List, but handover did not take place that day.
[16] On 18 April 2016 Sensus issued a certificate of practical completion stating that practical completion was reached on 15 April 2016. Ms Christiansen and Ms Beale signed the certificate on 18 April 2016.
[17] On 27 April 2016 Sensus, Sergon and QBCC attended a handover inspection at the property and produced a Defects and Omissions List.
[18] On 28 April 2016 Ms Christiansen and Ms Beale emailed the Defects and Omissions List to various staff at Sensus, Sergon and QBCC saying:
As agreed here is the updated defects and omissions list.
As advised onsite the process from here is that Sensus are to complete all items within 14 days after handover. Any items incomplete after 14 days are to be put into a complaint form and submitted to QBCC for a Building Inspector to investigate and issue direction for incomplete works.
[19] It appears to be common ground, having regard to a large number of documents, that Sensus carried out some rectification works after 28 April 2016.
[20] Ms Christiansen and Ms Beale moved into the house on or about 9 May 2016.
[21] On or about 27 April 2017 Ms Christiansen and Ms Beale lodged a complaint form with QBCC stating that Sensus had carried out defective building work. More than 200 complaint items were listed.
[22] This led on to an investigation by QBCC and a series of decisions and internal reviews, which it is not necessary to set out in full detail here. The two internal review decisions under review by the Tribunal were made by QBCC on 21 June 2018. One, which was communicated in Decision Notice 00000000360488, was in response to an internal review application by Sensus. The other, which was communicated in Decision Notice 00000000358942, was in response to an internal review application by Ms Christiansen. The effect of the internal review decisions was to give a direction to rectify to Sensus in respect of two complaint items – item 24 relating to sun hoods over the garage and item 42 relating to the location of an access hole for the roof – but not in respect of numerous other items.
[23] According to the Joint Statement, there are a number of complaint items to be addressed in the Tribunal’s review.
- [6]The Member then went on to consider each of the items. One of those items was item 58. Member Kanowski said in relation to the item:
[55] In one of his reports of 31 May 2018, Mr Barrett described chips in the surface, and some problems with the opening mechanism, apparently related to a missing striker plate and possibly also the use of material that is too thin. Mr Barrett regarded the door as defective, but said that the decision-maker ‘may wish to consider dates of events related to this matter’.
[56] The internal reviewer declined to issue a direction to rectify on the basis that the door was the responsibility of the original builder. The rationale for this conclusion is not explained.
[57] The position of QBCC about complaint item 58 in the Joint Statement is equivocal. Subsequently, QBCC in its submissions says that it now accepts that Sensus is responsible for the defect because Sensus removed and replaced the original door as part of its scope of works. However, QBCC submits that Ms Christiansen and Ms Beale were made aware of this defect at the time of the JHA Report, in March 2016, and it may not be fair to direct Sensus to rectify because the complaint was not made until April 2017. This was more than 12 months after Ms Christiansen and Ms Beale became aware of the defect.
[58] Ms Christiansen and Ms Beale contest QBCC’s view that the door in question, which they describe as a tall black door, was listed in the JHA Report. JHA’s list of defects in the laundry includes defects in the ‘laundry cavity sliding door’, ‘linen cupboard’, and ‘white cabinetry’. I accept that none of these appears to describe a tall black broom cupboard door, with the possible exception of ‘linen cupboard’, but I see no reason to doubt Ms Christiansen and Ms Beale’s submission on the topic. Ms Christiansen and Ms Beale also say that the door in question is not in the 24 March 2016 Table, pointing out that in that document the reference to dints and scratches on cabinetry in the laundry was followed by the description ‘white cabinets’.
[59] Bearing in mind the description in the complaint item, it seems entirely possible that the problems with this door did not become evident until after it had been in use for some time. Ms Christiansen and Ms Beale did not start occupying the house until 9 May 2016. On that basis, I accept the submission of Ms Christiansen and Ms Beale that they did not become aware of the defect at the time of the JHA inspection. It is reasonable to infer, and I do, that Ms Christiansen and Ms Beale became aware of the defect at some point less than 12 months before they lodged the complaint on 27 April 2017.
[60] Accordingly, I see no reason why QBCC should not issue a direction to rectify to Sensus in relation to this door.
- [7]Member Kanowski the made the following directions:
- The reviewable decision communicated in Decision Notice 00000000360488 is confirmed.
- The reviewable decision communicated in Decision Notice 00000000358942 is amended to the extent of additionally requiring Queensland Building and Construction Commission to give a direction to rectify to Sensus Building Group Pty Ltd in respect of complaint item 58 (black broom cupboard door in laundry).
Relevant legislation
Power to strike out
- [8]Section 47 of the QCAT Act empowers the Tribunal to make an order to dismiss or strike out a proceeding where it is appropriate to do so. The section provides
Dismissing, striking out or deciding if unjustified proceeding or part
- (1)This section applies if the tribunal considers a proceeding or a part of a proceeding is—
- (a)frivolous, vexatious or misconceived; or
- (b)lacking in substance; or
- (c)otherwise an abuse of process.
- (2)The tribunal may—
- (a)if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or
- (b)…
- (c)make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding or part.
Power to review
- [9]Section 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) provides:
A person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.
- [10]Section 86(1)(e) provides that a decision of the Commission to give a direction to rectify or not to give a direction to rectify is a reviewable decision.
- [11]Pursuant to section 86E provides that a decision of the Commission, within the meaning of sub-division 1, is a reviewable decision by external review by the Tribunal.
- [12]Section 24 of the QCAT Act provides, relevantly:
Functions for review jurisdiction
- (1)In a proceeding for a review of a reviewable decision, the tribunal may—
- (a)confirm or amend the decision; or
- (b)set aside the decision and substitute its own decision; or
- (c)set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
- (2)The tribunal’s decision under subsection (1)(a) or (b) for a reviewable decision—
- (a)is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under part 8; and
- (b)subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.
The Law
- [13]
It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; " be manifest that to allow them" (the pleadings) " to stand would involve useless expense".
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 at 91 where he says: " A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."[4]
The jurisdiction to strike out a proceeding has been considered on numerous occasions by the Tribunal. Examples are Dundral Pty Ltd v Orton,[5] Felstead v Bundaberg Homes Pty Ltd[6] and Legal Services Commissioner v Leneham.[7]
Commission’s submissions
- [14]The Commission submits that the Tribunal has no jurisdiction to review the giving of a new direction as it is not a decision capable of being reviewed
- [15]The Commission’s argument, in a nutshell, is that the Member made the decision and the Commission acting on that decision gave the new direction, therefore, it was not the Commission’s decision but the Tribunal’s decision. It argues that the act of giving a direction is not a reviewable decision.
- [16]Section 86(1)(e) provides that a reviewable decision is a decision to give a direction to rectify. In this case the decision was made by the Tribunal following an on the papers hearing when all items subject to the new direction were canvassed and decided. Albeit, that Sensus had no input. Pursuant to section 24(2)(a) of QCAT Act that is the decision of the decision maker.
- [17]The distinction between the making of a decision and the giving of a direction was made clear by Dalton J in McNab Constructions Australia Pty Ltd v Queensland Building Services Authority[8]where Her Honour said:
[18] From a review of the statutory provisions it should be plain that the question before me is not the same as the question before QCAT. QCAT has jurisdiction to review the decision of the respondent to direct rectification. The decision to direct rectification is necessarily anterior to the giving of a direction for rectification. My decision concerns only the directions to rectify actually given, it does not touch upon the validity of the decision of the respondent to direct rectification, or of course the merits of that decision. My decision is only concerned with the notice of that decision given to the applicant, by way of direction pursuant to s 72(1) of the QBSA Act.
- [18]Here the Commission has not made a decision, but, as required, has given effect to the Tribunal’s decision by making the new direction.
Sensus’ submissions
- [19]Sensus opposes the application to strike out its application on the basis that to do so would be a denial of natural justice. That may be a subject for judicial review under the Judicial Review Act 1991 (Qld) but is not within the Tribunals powers of review under the QCAT Act or the QBCC Act.
- [20]It is submitted by Sensus that, in respect to the two internal review decisions given on 21 June 2018, although it did not agree with the QBCC decision to direct rectification in respect to items 24 and 42, nevertheless, it rectified those items to avoid being given a Failure to Rectify notice and an adverse endorsement on its public record. It had meetings with several senior members of the Commission’s management where it is alleged certain undertakings and promises were made. That included the provision of information and an agreement to join Sensus as a party to the review proceedings.
- [21]Because it was not represented at the Tribunal hearing it came as a complete surprise that it was directed to rectify item 58 which had not been previously mentioned.
- [22]Sensus alleges that it was led to believe by the Commission’s lawyer that in relation to the new direction 0106830 it could seek a review of the direction as it had not been heard on the new item 58. Consequently, it filed the current Application to review which the Commission now seeks to strike out.
- [23]It alleges a denial of natural justice and submits that the Commission should not be allowed to renege on its previous express statements that Sensus would have review rights afforded to it in respect of the new Direction to Rectify 0106830.
Resolution
- [24]I accept the submissions of the Commission. In my opinion the Tribunal does not have jurisdiction to review the Direction to Rectify 0106830. Although, one has to act with caution when summarily striking out an application, I can see no basis on which Sensus can succeed in its application.
- [25]Sensus does not address the substance of the Commission’s principal submission being that the Tribunal lacks jurisdiction to review the new direction. It submits that the Commission’s argument is artificial and to allow it would mean that Sensus is not afforded an opportunity review or appeal the Direction to Rectify 0106830. If the submissions made by Sensus have substance then it may well have a remedy but not by way of review under the QCAT Act or the QBCC Act.
- [26]Although, one can empathise with Sensus being given no opportunity to dispute the new Direction to Rectify, unfortunately, that does not give the Tribunal jurisdiction to review that decision. Indeed, if Sensus’ submission were accepted then the right to review would be never ending.
- [27]Therefore, I strikeout the Application to Review filed by Sensus on 14 October 2020.