Maldes v Queensland Building and Construction Commission
[2022] QCAT 359
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- Unreported Judgment
- Maldes v Queensland Building and Construction Commission[2022] QCAT 359
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Maldes v Queensland Building and Construction Commission[2022] QCAT 359
Maldes v Queensland Building and Construction Commission[2022] QCAT 359
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Maldes v Queensland Building and Construction Commission [2022] QCAT 359 |
PARTIES: | dan maldes sharna maldes (applicants) v queensland building and construction commission (respondent) |
APPLICATION NO/S: | GAR408-19 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 14 October 2022 |
HEARING DATE: | 30 September 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Gordon |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the Queensland Building and Construction Commission decided not to give a direction to rectify in respect of certain complaints about building work – where the house owners applied to the tribunal to review the decision – where the contracting builder was subsequently deregistered as a company – whether the application for review should be dismissed on the grounds that a direction to rectify could not, or should not, be given because of the deregistration Queensland Building and Construction Commission Act 1991 (Qld), s 71I, s 72, s 86 Lim & Anor v Queensland Building and Construction Commission [2020] QCAT 499 Murtagh v Queensland Building and Construction Commission [2018] QCAT 258 |
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]Dan Maldes and Sharna Maldes have applied to the tribunal in GAR408-19 for a review of a decision made by the Queensland Building and Construction Commission (QBCC) not to give a direction to rectify in respect of certain complaints about work done by Sandhu Homes Pty Ltd when constructing a house for them.
- [2]After the application was made, Sandhu Homes Pty Ltd was deregistered as a company.
- [3]Because of the deregistration of the contracting builder, the QBCC now applies to strike out GAR408-19 on the grounds that it now lacks in utility and because the tribunal would be unable to grant the relief sought, that is, to decide that the correct and preferable decision is to give a direction to rectify. It is said that the direction to rectify should be given to the contracting builder, but that entity no longer exists.
- [4]The QBCC refers in its submissions to section 71I of the Queensland Building and Construction Commission Act 1991 (Qld) (QBBC Act) as enabling the tribunal to direct an entity other than the contracting builder to rectify, such as the former director or an employee. The QBCC submits however, that it would not be right to make such an order because the decision under review concerns the contracting builder and not such other person and so it would be contrary to the principles of natural justice and procedurally unfair to make such a direction, and it would pierce the corporate veil.
- [5]The answer to this question I think, lies in examining the elements of the ‘decision’ under review. Those elements appear from section 72 of the QBBC Act. A decision to give, or not to give, a direction to rectify entails deciding (a) whether the building work is defective or incomplete or that consequential damage has been caused by, or as a consequence of carrying out building work, (b) who is the person or persons who carried out the building work and (c) whether in the circumstances, a direction to rectify should be given to one or more of those persons.
- [6]‘The person who carried out the building work’ is widely defined in section 71I(1). In addition to the contracting builder, it is:
- (i)a person who, for profit or reward, carried out the building work; and
- (m)a person who was the nominee for a licensed contractor that is a company, for work carried out by the company while the person was the company’s nominee.
- [7]Section 71I(2) provides that for the purposes of subsection (1)(i), a person carries out building work whether the person carries it out personally or directly or indirectly causes it to be carried out.
- [8]For the purposes of this strike out application only, it is necessary to consider whether there is anyone other than the contracting builder who could come within subsections (1)(i) or (1)(m).
- [9]There is an ASIC search in the QBCC’s Statement of Reasons and this shows that at the time of the building work there were six shares issued in Sandhu Homes Pty Ltd and these had been issued to four members of the company all at the same address. One of these members of the company was Jagdip Singh Sandhu who was also the sole director of the company at the time, and also its secretary.
- [10]It can be seen from the documents in the QBCC’s Statement of Reasons that Mr Sandhu had an active role in causing the company to enter into the building contract and to complete the works.
- [11]Although I am not deciding this as a fact, it would appear likely that Mr Sandhu was a person who for profit or reward, at least indirectly, caused the building work to be carried out, that is through the company, and therefore was included in the definition of ‘the person who carried out the building work’ in section 71I(1)(i).
- [12]The QBCC’s Statement of Reasons also includes a Licence Search of the QBCC register for the period in which the building work was done, and this shows Jagdip Singh Sandhu as the nominee for Sandhu Homes Pty Ltd which was the licensed company. On the face of it therefore, and solely for the purpose of this strike out application, it would appear that Mr Sandhu also comes within section 71I(1)(m).
- [13]This means that in this review, the tribunal may decide that the building work was defective and that a direction to rectify should be given to Mr Sandhu.
- [14]Therefore, I do not agree that because of the deregistration of the contracting builder the tribunal would be unable to decide that the correct and preferable decision is to give a direction to rectify.
- [15]I note that it was held by Member Traves in Murtagh v Queensland Building and Construction Commission [2018] QCAT 258 that subsections (1)(i) and (1)(m) applied in similar circumstances,[1] and that Member McLean Williams in Lim & Anor v Queensland Building and Construction Commission [2020] QCAT 499 decided it was right that a direction to rectify should be given to a nominee of a deregistered company under subsection (1)(m).[2]
- [16]Any concerns about procedural fairness can be addressed by alerting Mr Sandhu to the application for review so that he can be added as a party if he wishes.
- [17]I do not agree that lifting the corporate veil is relevant. In enacting the provisions of section 71I, the legislature clearly intended that a direction to rectify could be given in an appropriate case against a person who take an active part in the operations of the company.
- [18]The contracting builder’s deregistration may well affect the merits of the review. In this respect section 72(5) of the QBBC Act would be noted. That provides that there is no requirement to give a direction to rectify to a person if in all the circumstances it would be unfair to the person to give the direction. It seems to me that it would be relevant to take into account that Mr Sandhu had no direct contractual obligation to do the building work, and there could be a number of relevant considerations not currently apparent.
- [19]In the circumstances I am unable to strike out GAR408-19 because the contracting builder has been deregistered.
- [20]It is right that Sandhu Homes Pty Ltd should be removed from the current proceeding and that Mr Sandhu should be notified so that he can apply to be joined as a party if he wishes, as a person affected by the outcome of the proceeding.
- [21]The applicants did not make submissions about this strike out application despite being directed to do so.[3] It is important for the tribunal to know whether the applicants wish to proceed with this review in the light of the deregistration of the contracting builder and directions are made accordingly.