Lucas v Queensland Building and Construction Commission
[2023] QCAT 484
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- Unreported Judgment
- Lucas v Queensland Building and Construction Commission[2023] QCAT 484
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Lucas v Queensland Building and Construction Commission[2023] QCAT 484
Lucas v Queensland Building and Construction Commission[2023] QCAT 484
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Lucas v Queensland Building and Construction Commission [2023] QCAT 484 |
PARTIES: | debra maree lucas (applicant) v queensland building and construction commission (respondent) |
APPLICATION NO/S: | GAR258-23 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 11 December 2023 |
HEARING DATE: | 6 December 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Traves |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – GENERAL ADMINISTRATIVE REVIEW – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant withdrew application to review a decision to disallow claim on basis contract not validly terminated by applicant – where application withdrawn due to legal costs – where applicant discovered new evidence subsequent to withdrawal in support of her position that contract validly terminated – where applicant seeks reinstatement pursuant to s 46(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), whether leave to reinstate her application to review should be granted – whether extension of time should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33, s 35, s 46, s 61 Jensen v Queensland Building and Construction Commission [2019] QCATA 11 Jensen v Queensland Building and Construction Commission [2017] QCAT 232 |
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]On 11 January 2023 the applicant, Ms Lucas (the owner) filed an application to review an internal review decision dated 14 December 2022, being a decision to wholly disallow a claim under the Queensland Home Warranty Insurance Scheme on the basis the contract was not validly terminated at the default of the licensed contractor.
- [2]This review application was subsequently withdrawn by Ms Lucas by the filing of a Notice of Withdrawal on 23 January 2023. The owner says the main reason she withdrew was because she had just received a bill from her solicitors for $28 000 and that it had made her ‘sick to the stomach’. She had also been told it would cost her $20 000 in legal fees for an estimated three-day hearing at the Tribunal.
- [3]Subsequently Ms Lucas became aware of information that she says supports her claim that she had in fact validly terminated the contract, for example that she had been charged for the demolition stage when the demolition had not been completed in accordance with the contract/engineering drawings. Ms Lucas also said she discovered that she could be self-represented in the Tribunal.
- [4]On 11 April 2023 Ms Lucas filed another application to review the same decision in the Tribunal. On 5 May 2023 Ms Lucas filed an application seeking reinstatement of the review proceedings which had been withdrawn and an application for an extension of time to file an application to review a decision.
Reinstatement application under s 46
- [5]Section 46 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides:
46 WITHDRAWAL OF APPLICATION OR REFERRAL
(1) An applicant may, in the way stated in the rules, withdraw the applicant’s application or referral for a matter before the matter is heard and decided by the tribunal.
(2) …
(3) If an applicant withdraws an application or referral, the applicant can not make a further application or referral, or request, require or otherwise seek a further referral, relating to the same facts or circumstances without leave of the tribunal.
- [6]Pursuant to s 46(3) of the QCAT Act, Ms Lucas requires leave to make the further application to review, given she had withdrawn a previous application seeking to review the same decision.
- [7]In Jensen v Queensland Building and Construction Commission[1] the Appeal Tribunal held that in considering whether to exercise the discretion to grant leave to make a further application, the Tribunal may have regard to the objects in s 3 of the QCAT Act and to the following factors:
- the merits of the application;
- the reasons for the initial withdrawal and the reasons for bringing the fresh application;
- the lapse of time; and
- the issue of prejudice to affected party and/or respondent.
Merits of the application
- [8]Ms Lucas outlines in her submissions a number of reasons why she says she validly terminated the contract with the builder. Those reasons include, relevantly:
- She had new evidence, namely the engineers’ drawings, which show that full demolition, including the Alfresco area, was required by the contract. Ms Lucas claims the builder misled the Queensland Building and Construction Commission by asserting that the Alfresco area was not included and that, at the time he was paid for the demolition stage, all work covered by that stage of the contract had been completed.
- The error above had arisen in part because the QBCC had not viewed all the related contracts that applied to the renovation of the main house as one contract.
- Ms Lucas said that at the time of the initial internal review process she was asked to identify with respect to the contract plans and/or specifications which demolition works required pursuant to the main residence contract had not been completed. Ms Lucas said that at that time she was not aware that the Engineers Structural Drawings showed and required the ‘entire contract area’ to be demolished.
- Ms Lucas said that the builder had misrepresented to her that only a small portion of the contract area required demolition and that the builder had withheld the Structural Engineering Drawings from her and from the Draftsman.
- On 25 January 2022 the builder sent Ms Lucas the invoice for the Demolition Stage knowing that, at that time. He had not completed the demolition stage. The demolition stage had still not been completed by 28 June 2022, when the contract was terminated.
- Ms Lucas said she was shown the structural engineering drawings and how to read them on 10 January 2023 by STA Engineers.
- The Alfresco area was not demolished until April 2022.
- Ms Lucas also claimed she was charged twice for cabinetry, once as part of the contract price and secondly as a provisional sum.
- The builder had been given an access code for the gate and was not unable to access the premises (other than for one hour and 25 minutes when he had lost the code and emailed Ms Lucas at 4:40pm to obtain it).
- [9]I am satisfied, based on the above, that Ms Lucas has reasonable grounds for arguing that she validly terminated the contract with the builder.
Reasons for withdrawing and for bringing the fresh application
- [10]In terms of the reasons for her withdrawal and for bringing the fresh application, Ms Lucas says she withdrew because she could not afford the legal fees. Ms Lucas says she was encouraged by a representative from the Commission to seek to re-file her application due to the new information that had become available.
Lapse of time
- [11]The second review application was filed 89 days out of time (being 89 days after being notified of the internal review decision on 15 December 2022). I agree this is a substantial delay in the context of the statutorily prescribed time period of 28 days to bring an application for external review.[2] In my view, the absence of a provision equivalent to s 49(4), does not mean the Tribunal is prevented from granting leave under s 46 if the application would be out of time. Provided the enabling Act does not provide otherwise, there is nothing to prevent, in my view, the Tribunal from considering an extension of time pursuant to its general power in s 61.
Prejudice to the affected party and/or respondent
- [12]I do not consider that the QBCC will be prejudiced by the granting of leave to file the application to review and by the extension of time. However, the builder is entitled to finality and if the application to review is allowed to proceed, will be potentially exposed to a decision that the contract was validly terminated thereby allowing a claim under the statutory insurance scheme which can then be recovered from the licensed contractor as a debt.
Extension of time under s 61 of the QCAT Act
- [13]Given the application to review is out of time, it is necessary to consider whether to grant an extension of time to file the application to review pursuant to s 61 of the QCAT Act.
- [14]The factors relevant to the exercise of my discretion to extend time were set out in Jensen v Queensland Building and Construction Commission.[3] They are as follows:
- Whether a satisfactory explanation (or “good reason”) is shown to account for the delay.
- 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).
- Prejudice to adverse parties.
- Length of the delay, noting a short delay is usually easier to excuse than a lengthy one.
- 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.[4]
- [15]Relevant factors in addition to those already considered in the context of whether to give leave under s 46(3) include:
- Ms Lucas’ inability to afford legal representation coupled with the complexity of the case supports the granting of an extension of time to file. The issue of whether the contract was validly terminated is complex both legally and factually and Ms Lucas was relying on other experts, namely the engineers to assist her in interpreting structural engineering drawings and other contractual documents.
- Ms Lucas had continued to engage with the QBCC between December 2022 (the date of the internal review decision) and May 2023, which also supports the granting of an extension of time. Ms Lucas was not idle. She was pressing her case with the QBCC although it had already exhausted its internal review process.
- Ms Lucas has not addressed directly the reason for her delay in bringing the second review application. While this generally militates against granting an extension, in Ms Lucas’ case it can be inferred that the factors that contributed to the delay include that she was self-represented, involved in a complex dispute, and afraid to incur further legal costs.
- The builder may be prejudiced by granting the extension of time. This is a factor against granting an extension because the builder, if an extension is granted, may be involved in review proceedings, a decision to allow a claim may be made which then potentially exposes the builder to proceedings by the QBCC to recover the amount of the payment made under the scheme from the builder as a debt.
- [16]On balance, for the reasons above, and in particular the evidence about the contracted demolition works and provisional cost items about which Ms Lucas claims she was unaware at the time she withdrew, it is in the interests of justice to grant the applications for reinstatement and to extend time.
- [17]Accordingly, the application for leave to file another application to review and the application for an extension of time are granted.