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  4. JPD Concreting Specialists Pty Ltd v Queensland Building and Construction Commission - [2022] QCAT 444

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JPD Concreting Specialists Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 444

JPD Concreting Specialists Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 444

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

JPD Concreting Specialists Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 444

PARTIES:

JPD Concreting Specialists Pty Ltd

(applicant)

v

Queensland Building and Construction Commission

(respondent)

APPLICATION NO/S:

GAR062-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

4 October 2022

HEARING DATE:

14 September 2022

HEARD AT:

On the papers

DECISION OF:

Member LeMass

ORDERS:

  1. The Application to Extend the date for filing a Review is granted.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – whether extension of time to file application for review should be granted under s 61 of the QCAT Act – whether extension of time in enabling Act can be granted – effect of s 86F(1)(b) of the Queensland Building and Construction Commission Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 33, s 61

Spence v QBCC (No 2) [2020] QCAT 358

Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1

Jensen v Queensland Building and Construction Commission [2022] QCAT 215

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. [1]
    By contract dated 12 October 2020 the applicant, JPD Concreting Specialists Pty Ltd (JPD), agreed to carry out some $40,000 of concrete resealing works for the Pine View body corporate (body corporate) at Chermside in Brisbane.
  2. [2]
    Upon a date after completion of the works a resident slipped and fell on part of the works and broke their leg. The body corporate engaged a consultant, Slip Test Australia, to investigate. They tested on the 22 March 2021.[1]
  3. [3]
    This report concluded that with respect to the pool area, the average reading was 26 and the Australian Standard between 40 and 44.
  4. [4]
    With respect to the speed bump areas the average reading was 26 when the Australian Standard was 45 to 54. A significant departure from the standard.
  5. [5]
    The Commission, following complaint, investigated and on 13 September 2021 issued a Direction to Rectify to the Applicant.[2] The directions Included 11 items and required completion by the 18 October 2021. This was subsequently extended till the 15 November 2021.[3]
  6. [6]
    On 7 December 2021 the Commission scheduled inspection for the 9 December 2021.
  7. [7]
    The Applicant’s representative, Ms Bradfield, office manager, advised in a telephone conversation with the inspector Mr Lewis that, she was in hospital and requested that the inspection be postponed. She says his answer was “No”.[4]
  8. [8]
    On 9 December, Mr. Lewis carried out his reinspection without Ms Bradfield.
  9. [9]
    On 14 December and prior to the issue of Mr Lewis's report Ms Bradfield presumably out of Hospital sent to Mr. Lewis, substantial material, being an email outlining her position and extensive correspondence with the body corporate.[5]
  10. [10]
    I am unsure as to whether Mr. Lewis read or received this, it is not acknowledged, answered or taken into account in his final report.[6]
  11. [11]
    The applicants primary grievance appears to be that its request to extend the DTR period, made to Mr. Lewis on 14 December 2021 at sub.5 [sic], was not received and/or granted. I am unsure what to make of this as sub 5 is an incorrect reference – the email of the 14th is sub 7, and it does not request an extension. Further, what does not received and/or granted mean?
  12. [12]
    16 December 2021 the Commission notified the Applicant of its decision that the applicant did not complete the work required by the direction to rectify.[7]
  13. [13]
    On 17 December 2021 one day later the commission issued a fine of some $2,700 to the applicant although this was immediately withdrawn by the Commission.[8] After, the applicant elected to challenge in the court.
  14. [14]
    On the 17th day of January 2022, the applicant applied for an internal review.
  15. [15]
    One day later on the 18 January 2022 Ms White wrote to the applicant advising that she would not be conducting an internal review because the DTR work was not completed during the period and as such was out of jurisdiction, I will later remark that this is incorrect.
  16. [16]
    On the 23 February 2022 the applicant filed with the Tribunal an Application to Review a decision and on the 30 March 2022 this application to extend.
  17. [17]
    The Commission says that the application is misconceived and should be dismissed as the INF (fine) is not capable of review by the Tribunal.[9] This is irrelevant because it has already been withdrawn and I won't deal with it further.
  18. [18]
    Further submitted that the DTR period is not capable of review by the Tribunal. I cannot see any material where a request to extend the DTR period was made and similarly I won’t take this further.

The Applicant contends

  1. [19]
    The Applicant, self-represented, says that they are unsatisfied with the decision of Mr Lewis that the work was not completed and says that he is wrong because: firstly, the issue with respect to slip resistance has now been fixed; and secondly, because the actions of the occupants, building tenants and owners made rectification works practically impossible.[10]
  2. [20]
    That such submissions were made to Mr Lewis prior to his report and that a plea was made to Mr Lewis to allow the applicant’s representatives to put this to him by delaying the inspection because Ms Bradfield was in hospital and such request was denied.

Findings

  1. [21]
    The defective works could be categorised as items 1, 2, 7, 8 and 9, being the most serious health and safety issues with respect to slip resistance, noting the investigation was as a result of a person who had slipped, fallen and suffered injuries.
  2. [22]
    The balance of the six items is essentially aesthetic.
  3. [23]
    In correspondence, notes and job boards, the applicant and body corporate appear to be acting in a most reasonable and unusually cordial manner in order to achieve the desired outcome.[11] This was also put before Mr Lewis prior to his report, being concluded.
  4. [24]
    The applicant states that they have been hindered by the owners’ failure to remove vehicles from the building and others who continued to drive over the works earlier than the applicant had recommended.[12] Where the Applicant confirms with the Body Corporate that driving over the works earlier than recommended is at their own risk. This is included in the 14 November email and attachments to Mr Lewis.
  5. [25]
    Further correspondence, relevantly includes the Body Corporate acknowledging that the Applicant was prevented by the owners from completing the works, accepting liability and a “verbal” sign off of the works by the Body Corporate on Saturday the 13th November.
  6. [26]
    I believe at this stage matters as between the Body, Corporate and the applicant were at an end, there is no other advice on the file of further or future claims for more rectification.
  7. [27]
    The Work not fixed or completed Notice issued on the 16th of December 21.[13] The document is misleading as it merely restates the defect work list, omitting item six, (which had been completed), and is difficult to understand without reference to the detailed report.[14]
  8. [28]
    Because the Work not fixed or completed Notice states for example, in item 1

The installation of the sealer to the pavements surrounding the pool area does not comply with AS-4586. 2013.

  1. [29]
    This may be factually incorrect, as at the time of inspection, it did comply, and that is the same for items 1, 2, 7, 8 and 9.
  2. [30]
    Upon reading the detailed report with respect to item 1, it fails to reveal that the work has been completed satisfactorily. This is not mentioned at all, rather it says that the DTR item has not been satisfactorily complied with, which appears to be factually wrong. Nevertheless, it goes on to find novel issues, with respect to air pockets in the coating, not the subject of complaint.
  3. [31]
    The body corporate, at page 143, confirms that it has performed slip tests on the resurfaced area:

“the pool area, and the speed bumps now have excellent slip, resistance, that meets the standard. Thank you for attending to this safety issue.”

With respect to the balance of the aesthetic items

  1. [32]
    The email of the 14th brought to the attention of the inspector relevant conduct of the owner, tenants and occupants of the building prior to the report. It is relevant and may be an explanation of the reason for non-attendance to the defect. If the inspector had read the correspondence, he would have understood that it was not a request for extension, but that the works had been attended to as best they could in the circumstances, and that the complainant body corporate was, at that stage, happy with the works and accepted some liability for interfering with the applicant's ability to complete those works.
  2. [33]
    If the inspector had given Ms Bradfield time to leave hospital, she may have had the opportunity to explain this to him.
  3. [34]
    It is well accepted that the refusal of an owner to provide access to a builder is an excuse for non-performance.[15]

The Commission might decide not to give a direction for the rectification…because an owner refuses to allow access.

Detriment

  1. [35]
    So, in the absence of any compensation, for non-completion of works, the only issue between the parties is the applicant's reputation by the publication of this failure to rectify on its public record.

Time

  1. [36]
    Section 33 of the QCAT Act requires an application for review of a reviewable decision to be made by filing in the registry within 28 days after the relevant day.
  2. [37]
    The Commissions submit at paragraph 50 that to comply with the above, the application should have been filed on the 13th of January, at paragraph, 51 the commission says that, that It is therefore 41 days out of time.
  3. [38]
    The Notices given to the Applicant on the 16th of December, set out;

Rights

  1. [39]
    The applicant is entitled to an internal review of the decision and/or an external review of the decision at the tribunal.
  2. [40]
    The note to the document, says as follows:

Note:An internal review and QCAT review of the same decision, cannot occur simultaneously.

  1. [41]
    The logical implication being that, if an internal review is commenced, then time ceases to run until a decision with respect to that internal review has been made.
  2. [42]
    Note Section 86D(2)(c) of the Queensland Building and Construction Commission Act 1991 (Qld) requires the Internal Review decision to confirm that the applicant has a further 28 days to apply.
  3. [43]
    The outcome of the internal review, (if indeed it was reviewed), being the correspondence from Ms White is unfortunate.
  4. [44]
    It finds that because the work was not done there was no jurisdiction to review and

Your application confirms that your company did not complete the required rectification for DTR…”

  1. [45]
    The most cursory enquiry even in the one day it took, or a phone call to Ms Bradfield, would have revealed that the work was complete and the inspectors report possibly incorrect.
  2. [46]
    Unfortunate because this is the precise procedure aimed at keeping these matters out of the Tribunal at considerable savings to the public purse.
  3. [47]
    The decision delivered 18 January 2022, may see the Application filed within Time.

Legislation and Principles

  1. [48]
    Section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) confers a discretion on the Tribunal to extend time. There is an evidentiary onus upon the prospective respondent to raise any matter against the exercise of the discretion, but the ultimate onus remains with the Applicant.[16]
  2. [49]
    Section 61(3) provides that the tribunal must not extend the time if it would cause prejudice or detriment to a party to a proceeding, which was not able to be remedied by an appropriate order for costs or damages. I do not consider that there would be any such prejudice caused in this matter.
  3. [50]
    Judge Thomas QC in Crime and Misconduct Commission v Chapman[17] outlined the following as being relevant:
    1. (a)
      Whether a satisfactory explanation (or “good reason”) is shown to account for the delay.
    2. (b)
      The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed on the preliminary material).
    3. (c)
      Prejudice to adverse parties.
    4. (d)
      Length of the delay, noting a short delay is usually easier to excuse than a lengthy one.
    5. (e)
      Overall, whether it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination.

Application of above

Explanation for delay.

  1. [51]
    There is no explanation for the delay. I note the matter occurred over the Christmas period. But no extensions of time are made for that reason and that the application is filed on the 23rd day of January, there was no impediment with the Tribunal not being open.
  2. [52]
    Nevertheless, I have referred above to possible alternate calculation of time and the implications of the internal review.

Interests of Justice,

  1. [53]
    This is the fundamental issue. The notification of failure to complete rectification is, as I have found above, misleading at least in part as to the substantial defects and as to the balance is directly, the subject of notification to the inspector of owners interference, precluding completion.
  2. [54]
    Matters, which should have been considered by the inspector, and when requested to be allowed to make such submissions at a later date, when the applicant was in hospital, the Inspector denied that opportunity.
  3. [55]
    Accordingly, for the reasons set out above and the overwhelming interest of justice, the Applicant should not be precluded from pleading the circumstances of its case.
  4. [56]
    The Application to extend a time limit of 30 March 2022 is granted.

Footnotes

[1]Report marked Sub 2, for convenience I have adopted the Commission's numbering format.

[2]Sub 3.

[3]Sub 4.

[4]See file note from a different person “Bl”, sub 6 may be different conversation.

[5]See submissions pages 117 to 179.

[6]See Submissions Paragraph 39.

[7]The decision.

[8]See paragraph 35.

[9]At submissions paragraph 38.

[10]See email, sub 7.

[11]Submissions pages 117 to 179.

[12]See submissions page 136.

[13]Sub 9.

[14]Sub 8.

[15]See Spence v QBCC (no 2) [2020] QCAT 358, at [8] and the explanatory note to Section 72(5) Queensland Building and Construction Commission Act 1991 (Qld).

[16]Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1.

[17]Crime and Misconduct Commission v Chapman [2017] QCAT 232, [67] as summarized in Jensen v Queensland Building and Construction Commission [2022] QCAT 215 [4].

Close

Editorial Notes

  • Published Case Name:

    JPD Concreting Specialists Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    JPD Concreting Specialists Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2022] QCAT 444

  • Court:

    QCAT

  • Judge(s):

    Member LeMass

  • Date:

    04 Oct 2022

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
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
2 citations
Jump To
Cite 1 - (1996) 139 ALR 1
Cite 2 - (1996) 139 ALR 1
Jenkins v Queensland Building and Construction Commission [2022] QCAT 215
2 citations
Jump To
Cite 1 - [2022] QCAT 215
Cite 2 - [2022] QCAT 215
Jensen v Queensland Building and Construction Commission [2017] QCAT 232
1 citation
Jump To
Cite 1 - [2017] QCAT 232
Spence v Queensland Building and Construction Commission (No. 2) [2020] QCAT 358
2 citations
Jump To
Cite 1 - [2020] QCAT 358
Cite 2 - [2020] QCAT 358

Cases Citing

Case NameFull CitationFrequency
Jarvis v Queensland Building and Construction Commission [2025] QCAT 532 citations
1

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