Acanthus Investments Pty Ltd v Queensland Building Services Authority

[2010] QCAT 5

CITATION:    Acanthus Investments Pty Ltd v Queensland Building Services Authority [2010] QCAT 5

PARTIES:   Acanthus Investments Pty Ltd

V

Queensland Building Services Authority

APPLICATION NUMBER:            QR151-09

MATTER TYPE:   

HEARING DATE:   7 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   7 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Stay application dismissed

CATCHWORDS: Application for stay – section 22 of Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. An application was made to the Commercial and Consumer Tribunal on 6 July 2009 by Acanthus Investments Pty Ltd (the applicant) seeking a review of a decision of the Queensland Building Services Authority (the respondent) made on 12 June 2009 to require the applicant to rectify work at 34 Law Road, Warwick.   The applicant also sought a stay of the decision under review. 

ISSUES AND THE LEGISLATION

1. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Commercial and Consumer Tribunal as a result of the Commercial and Consumer Tribunal being abolished by the Queensland Civil and Administrative Tribunal Act 2009 (the Act).  

2. Under section 256 of the Act, a pending proceeding (being a proceeding commenced in one of the Tribunals abolished by the 2009 Act but not heard by the abolished Tribunal prior to 1 December 2009) is taken to be a proceeding before the Queensland Civil and Administrative Tribunal. However, according to section 271 of the Act, the Tribunal only has the functions that the Commercial and Consumer Tribunal had had in relation to the pending proceeding under the now repealed Commercial and Consumer Tribunal Act2003. 

3. Both the repealed Commercial and Consumer Tribunal Act2003 and the 2009 Act contain provisions for the relevant Tribunal in its discretion to stay the operation of a decision being reviewed by the Tribunal. Section 22 of the 2009 Act provides that the Tribunal can make an order to stay a decision only if it considers it desirable after having regard to the interests of any person whose interests may be affected by the making of, or declining of, a stay order, having regard to any submissions made to the Tribunal by the decision maker and having regard to the public interest.

SUBMISSIONS

5. The applicant by its director, Alex Djordjevic, made written submissions to the effect that it was not necessary to carry out the rectification work as the drain in the ensuite shower was functioning correctly.   
6. The respondent made more extensive submissions on the issue of a stay order.  The respondent does not consent to the making of a stay order.  The respondent submitted that the Tribunal when considering the stay application should take into account whether the applicant had established a prima facie case for the review, whether the balance of convenience supported the granting of a stay, whether there were circumstances different from the ordinary supporting the granting of a stay and the public interest. 
7. As to those factors, the respondent submitted that the applicant had not put forward evidence on which a prima facie case in favour of the review had been established.  The respondent submitted that failure to rectify the work may allow water penetration into the dwelling which may adversely affect the health or safety of the occupants and that the work should be rectified immediately to avoid further consequential damage to the dwelling and to avoid escalating costs. 
8. Further the respondent submitted that the applicant had not demonstrated any circumstances different from the ordinary in this case to justify a stay of the decision. 
9. The respondent submitted that the Tribunal should take into account the objects of the Queensland Building Services Authority Act 1991 which include the achieving a reasonable balance between the interests of building contractors and consumers.  It was submitted that the owner of the dwelling would face considerable detriment if a stay were to be granted as a stay would prevent the respondent from assessing whether the owner was entitled to compensation under the statutory insurance scheme until after the review was determined by the Tribunal.   
10. The respondent submitted that the Tribunal should adopt comments made by member Butler SC in the case of 1770 Coastal Constructions Pty Ltd v Queensland Building Services Authority [1] that the public interest in ensuring maintenance of proper standards in the building industry must be taken into account when exercising the discretion to stay a decision. 

[1] [2007] CCT QR039-07 and QR101-07 at paragraph 14

11. The respondent submitted that the applicant had been afforded a reasonable opportunity to carry out rectification work and to conduct whatever investigations are necessary in order for the applicant to proceed with the review application.  It was submitted that the absence of a stay will not prejudice the applicant. 

CONCLUSION

12. The applicant has provided no useful information to assist the Tribunal in considering the application for a stay and as a result the Tribunal cannot have regard to how the applicant’s interests will be affected in the event that a stay of the decision to rectify is not made.    
13. The Tribunal accepts the submissions made by the respondent that the interests of the owner of the dwelling are likely to be adversely affected in the event that a stay is granted as a further delay in work being carried out may allow water penetration into the dwelling affecting the health or safety of the occupants and resulting in consequential damage to the dwelling and escalating costs.  The Tribunal accepts that the owner of the dwelling may face considerable detriment if a stay were to prevent the respondent from expeditiously assessing whether the owner was entitled to compensation under the statutory insurance scheme. 
14. The Tribunal is satisfied by the submissions made by the respondent that the applicant had not demonstrated any circumstances different from the ordinary in this case.   
15. The Tribunal considers that it is in the public interest that the respondent is able to conduct its statutory duty of ensuring maintenance of proper standards in the building industry with all reasonable diligence and that its functions, while subject to review by this Tribunal, are not unnecessarily impeded in ways that would tend to undermine the integrity of the scheme for issuing directions to rectify work for the protection of the consumers and the public.      
16. The Tribunal is not satisfied that it is desirable in this case to make an order to stay the operation of the decision under review.  A stay, if granted, would adversely affect the interests of the owner of the dwelling and would tend to undermine the integrity of the scheme for issuing directions to rectify work in a case where the applicant has not provided any cogent information in support of the stay application.    
17. The application for a stay of the decision of the respondent made on 12 June 2009 is dismissed.