Arcon Constructions Pty Ltd v Queensland Building Services Authority

CITATION: Arcon Constructions Pty Ltd v Queensland Building Services Authority [2013] QCAT 573

PARTIES:	Arcon Constructions Pty Ltd (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER: GAR112-13

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Jeremy Gordon, Member

DELIVERED ON: 25 October 2013

DELIVERED AT: Brisbane

ORDERS MADE:

The Queensland Building Services Authority shall pay to Arcon Constructions Pty Ltd its costs in these proceedings incurred after 9 April 2013, fixed at $1,870.80.

CATCHWORDS:

COSTS – application to review decision about scope of works - step leading to that decision appearing to be void because of Supreme Court case of McNab – whether scope of works should have been withdrawn by QBSA soon after that case

Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102, 105, 107
Queensland Civil and Administrative Tribunal Rules 2009 r 89
Queensland Building Services Authority Act 1991 ss 72, 74, 86
McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QSC 057
JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 216
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. These proceedings have been withdrawn, and the only outstanding matter is the question of costs.

2. In brief, in these proceedings the Applicant Arcon Constructions Pty Ltd sought a review of a decision made by the Queensland Building Services Authority about the scope of works to be undertaken under the statutory insurance scheme in order to rectify certain work which the QBSA said was defective.  The scope of works was issued on 27 February 2013.

3. The decision to issue the scope of works was made because (according to the QBSA) Arcon had failed completely to carry out work required in a direction to rectify issued by the QBSA on 24 September 2012.

4. While the review proceedings were making their way through the Tribunal, on 14 March 2013 the decision of the Supreme Court in McNab Constructions Australia Pty Ltd v Queensland Building Services Authority[1] was handed down.  That case concerned the statutory requirement that at least 28 days had to be given to a builder to carry out rectification work in a direction to rectify.[2]  Dalton J decided that the 28 days started when the builder received the direction, rather than when the direction was dated and posted to the builder.  The QBSA was in the practice of posting directions and only allowing 28 days from the date when this was done.

   [1][2013] QSC 057.

   [2]Queensland Building Services Authority Act 1991 s 72(3).

5. Because of that decision, the direction to rectify issued by the QBSA on 24 September 2012 and posted on that date to Arcon was known to be void because it did not give the…