Birrell v Queensland Building Services Authority - [2013] QCAT 56

CITATION:

Birrell v Queensland Building Services Authority [2013] QCAT 56

PARTIES:	Alan Birrell (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR015-11

MATTER TYPE:	General administrative review matters
HEARING DATE:	10 February 2012

HEARD AT:

Townsville

DECISION OF:

Keta Roseby, Member

DELIVERED ON:

29 January 2013

DELIVERED AT:

Townsville

ORDERS MADE:

1. The Tribunal sets aside the Authority’s decision and substitutes that decision with a decision that the Authority issue a direction to rectify to the Builder in respect of the Category 2 defects referred to in items 2, 3, 5 and 7.

CATCHWORDS:

Application by homeowner to review decision of the Authority not to issue a direction to rectify – failure to lodge complaint for defective building work within time referred to in the Authority’s policy – exercise of discretion – whether lodgement of complaint outside of time frame referred to in policy automatically renders a direction to rectify unfair

Queensland Civil and Administrative Tribunal Act 2009, ss 17, 18, 24, 33
Queensland Building Services Authority Act 1991, ss 72, 86(1)(e), 87

Dixon Projects Pty Ltd v Queensland Building Services Authority [2009] CCT QT104-07
Feoderoff v Queensland Building Services Authority [2005] CCT Q035-05

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Alan Birrell

RESPONDENT:

Ms Kristie Heywood, Lawyer, Building Services Authority

REASONS FOR DECISION

Mr Birrell[1] entered into a contract with Bawden & Associates Pty Ltd, trading as NQ Pool Warehouse, (the Builder) for the supply and installation of a fibreglass swimming pool at the Birrell’s home in Douglas (the Property), on 25 September 2009.
[1] Together with Tara Birrell.
Following unsuccessful attempts by Mr Birrell to have the Builder rectify alleged defects, Mr Birrell lodged a complaint with the Building Services Authority (the Authority). After inspection the Authority resolved not to issue a direction to rectify to the Builder.
Mr Birrell has applied to the Tribunal for a review of the decision of the Authority not to issue a direction to rectify to the Builder.[2]
[2]The application is made pursuant to ss 17, 18 and 33 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) and ss 86(1)(e) and 87 of the Queensland Building Services Authority Act 1991 (the QBSA Act).
Work commenced at the Property on 4 November 2009 and was completed in or around January 2010.
Mr Birrell first notified the Builder of alleged defects by email dated 9 November 2009.[3] A further email followed on 18 November 2009.[4]
[3] “SOR-5” to Exhibit 4.
[4] “SOR-6” to Exhibit 4.
Mr Birrell says that he contacted the Authority in or about April 2010 and was advised by a representative of the Authority ‘to put his request in writing to the Builder and allow them a period of six months to rectify’ before he could lodge formal complaint with the Authority.[5]
[5] Exhibit 1, page 1, paragraph 3.
Mr Birrell forwarded a further email to the Builder dated 7 April 2010. This email referred to a (then) recent site visit and that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Birrell v Queensland Building Services Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QCAT 56
Decision Date: 29 January 2013

CaseChat Overview and Summary

The matter of Birrell v Queensland Building Services Authority was heard by the Queensland Civil and Administrative Tribunal. The applicant, Mr. Birrell, sought a review of the Authority's decision not to issue a direction to rectify for certain building defects in his home. The respondent, the Queensland Building Services Authority, argued that Mr. Birrell had failed to lodge a complaint within the specified timeframe stipulated by their policy, thereby rendering the application out of time.

The primary legal issue before the Tribunal was whether the failure to lodge a complaint within the timeframe automatically rendered a direction to rectify unfair, or whether the Tribunal had the discretion to consider the application on its merits. The Tribunal considered whether the policy timeframe was a mandatory requirement or whether it provided for discretion to be exercised in certain circumstances. The case hinged on the interpretation of the Authority's policy and the extent of the Tribunal's jurisdiction to review and substitute the Authority's decision.

The Tribunal found that the policy did not establish a mandatory requirement for the lodgement of complaints within the specified timeframe, but rather provided for the exercise of discretion in certain circumstances. The Tribunal held that it had the jurisdiction to review the Authority's decision and substitute its own decision if it was satisfied that the Authority had exercised its discretion unreasonably. The Tribunal concluded that the Authority had exercised its discretion unreasonably by failing to consider the merits of the application. Consequently, the Tribunal set aside the Authority's decision and substituted it with a decision that the Authority issue a direction to rectify to the Builder in respect of the specified defects.

In summary, the Tribunal held that the Authority's policy did not preclude the exercise of discretion and that the Tribunal had the jurisdiction to review the Authority's decision. The Tribunal found that the Authority had exercised its discretion unreasonably and set aside its decision, substituting it with a decision that a direction to rectify be issued to the Builder.

Orders

Orders of the court

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.