Mai v Queensland Building and Construction Commission
[2022] QCAT 296
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- Unreported Judgment
- Mai v Queensland Building and Construction Commission[2022] QCAT 296
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Mai v Queensland Building and Construction Commission[2022] QCAT 296
Mai v Queensland Building and Construction Commission[2022] QCAT 296
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Mai v Queensland Building and Construction Commission [2022] QCAT 296 |
PARTIES: | Phuong mai (applicant) V queensland building and construction commission (respondent) |
APPLICATION NO/S: | GAR441-21 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 2 August 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: | The strike out application filed on 19 November 2021 is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where complaint made within 6 year and 6 month period – where QBCC failed to make a decision within the 6 year and 6 month period – whether direction to rectify can be issued – whether application should be struck out Queensland Building and Construction Commission Act 1991 (Qld), s 72A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24 Doolan v Queensland Building and Construction Commission [2017] QCAT 58 Jorg & Anor v Queensland Building and Construction Commission [2020] QCAT 528 Kabir v Queensland Building and Construction Commission [2016] QCAT 180 NG & Hastings v Queensland Building Services Authority [2009] QCCTB 137 Shauer v KJ & S O'Brien Contractor Pty Ltd & Ors [2019] QCAT 37 Stephens & Anor v Queensland Building and Construction Commission [2018] QCAT 281 |
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
- [1]The Queensland Building and Construction Commission (‘QBCC’) has applied to strike out the review proceedings commenced by Mr Mai. Mr Mai has sought review of a decision of the QBCC dated 22 April 2021 not to issue a direction to rectify.
- [2]The QBCC relies on s 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), which provides:
A direction to rectify or remedy cannot be given more than 6 years and 6 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.
- [3]The chronology in the present case is straightforward:
- (a)On 22 May 2014, work on Mr Mai’s house was completed.
- (b)On 27 July 2020, Mr Mai lodged a complaint with the QBCC.
- (c)On 22 November 2020, the period of 6 years and 6 months after the completion of the work expired.
- (d)On 22 April 2021, the QBCC decided not to issue a direction to rectify.
- (a)
- [4]This position is wholly unsatisfactory. Had the QBCC made a decision within 118 days of Mr Mai lodging his complaint, the decision would have been made within the 6 year and 6 month period. Mr Mai had no way of predicting it would take the QBCC 270 days to make its decision, but had he somehow been able to accurately predict this it would have effectively reduced the 6 year and 6 month period to a 5 year and 9 month period.
- [5]I do not consider it desirable that a complaint made well within time should necessarily be defeated by a delay in the QBCC making its decision. Were this position adopted, it would be open to the QBCC to decide to defeat any particular complaint simply by delaying its decision until after the period of 6 years and 6 months has expired. Such a decision, even if made in bad faith, would be beyond review by the Tribunal.
- [6]I respectfully agree with the observations of Member Favell in NG & Hastings v Queensland Building Services Authority [2009] QCCTB 137 at [58]:
If the Authority was correct that would mean that not only would a defect have to be discovered within 6 years and [6] months, but also the Authority’s decision not to give such a direction be the subject of an application and the application be heard and decided. It would require any order in effect overturning or affirming the decision of the Authority to be given before the expiration of six years and [six] months. In my judgment that is not the purpose or effect of section [72A(4)].
- [7]In its written submissions, the QBCC cited a number of authorities. One authority that it did not cite was my decision in Jorg & Anor v Queensland Building and Construction Commission [2020] QCAT 528, where I had regard to the operation of s 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
- [8]Section 24(2)(b) of the QCAT Act provides that a decision of the Tribunal upon review:
subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.
[emphasis added]
- [9]I observed in Jorg at [19]-[21] that:
It would be open to the Tribunal to order that its decision take effect from a date within the six year and six month period.
I am mindful that it took the QBCC nine months and 24 days to make its original decision on the first complaint, and eight months and 15 days to make its original decision on the second complaint. Had the QBCC made its original decisions a matter of days earlier, the 28-day period for making the internal review decisions pursuant to s 86C(2)(a) would have expired within the six year and six month period.
However, I am of the view that it would not be appropriate to make an order to the contrary pursuant to s 24(2)(b) of the QCAT Act in these cases ... For completeness, I note that there may be other circumstances in which a delay by the QBCC in making an original decision would warrant the making of an order giving effect to the Tribunal’s decision from an earlier date within the six year and six month period.
- [10]It seems to me that it would be open to Mr Mai to argue on the review, if the Tribunal otherwise considers that a direction to rectify should be given, that the Tribunal should order that its decision take effect from within the 6 year and 6 month period.
- [11]Alternatively, in Kabir v Queensland Building and Construction Commission [2016] QCAT 180, an authority which was cited by the QBCC, Member McLean Williams expressed the following view at [34]-[35]:
In the instant case, no application has been brought by the QBCC to extend time. In circumstances as here, on a de novo Application for Review - where it may be taken that I may now exercise the power to apply to extend time under s 72A(4) as if I were standing in the shoes of the QBCC – the power must, nonetheless, only be exercised wherein I am first satisfied that there is ‘sufficient reason’ to extend the time for the giving of a direction. The germane question becomes: whether sufficient reason has now been demonstrated to extend time to issue a direction?
[35] In this context, ‘sufficient reason’ can only mean a basis that is able to be ascertained on all of the evidence, and then one that is sufficiently persuasive so as to displace the statutory ‘norm’ caused by s 72A(4), that holds that a licensee is not required to rectify even category one defects, if these are occurring more than six years and three months after the time of construction.
- [12]The proper approach for the QBCC would be to apply to extend time where it is unable to make a decision within the 6 year and 6 month period in respect of a complaint made within that period. Given that the QBCC has failed to adopt such an approach in this case, it seems to me that it would be open to Mr Mai to argue that the Tribunal may exercise the power to apply to extend time as if it were ‘standing in the shoes’ of the QBCC. I acknowledge that this view has not found widespread acceptance in the Tribunal. Nevertheless, in the absence of any binding authority at appellate level, it remains arguable.
- [13]The existence of a sufficient reason to extend time would primarily relate to the QBCC’s reasons for being unable to make a decision within the 6 year and 6 month period, but may also encompass the Tribunal’s view as to whether a direction to rectify should otherwise be given.
- [14]In my view, it is not appropriate to decide these issues on an interlocutory basis, and that a decision should only be made after a full canvassing of the factual circumstances at a hearing, including whether a direction to rectify should otherwise be given. I am unable to form a view on an interlocutory basis that Mr Mai’s case is so lacking in merits that he has no prospects of success if the application were to proceed.
- [15]For completeness, I note that the QBCC cited a number of other authorities containing statements which ostensibly support of its position. However, it seems to me that each of these authorities may be distinguished on the basis that the respective complaints were not made within the 6 year and 6 month period. In particular, the QBCC cited:
- (a)In Stephens & Anor v Queensland Building and Construction Commission [2018] QCAT 281 at [21], the owners complained ‘well after’ the 6 year and 6 month period had expired.
- (b)In Shauer v KJ & S O'Brien Contractor Pty Ltd & Ors [2019] QCAT 37 at [3], ‘the complaint by the owners was made to [the QBCC] more than 6 years and 6 months had passed since the work had been completed’.
- (c)In Doolan v Queensland Building and Construction Commission [2017] QCAT 58 at [1], the owner ‘did not complain to the Queensland Building and Construction Commission about her drainage problem, for more than seven years after Hallmark Homes Pty Ltd completed work on her home’.
- (a)
- [16]In my view, while these authorities were correctly decided, they offer no assistance in the present case as they do not relate to a situation where the complaint was made within the 6 year and 6 month period.
- [17]I will dismiss the strike out application brought by the QBCC.