Camill Constructions Pty Ltd v Queensland Building Services Authority

[2013] QSC 275

SUPREME COURT OF QUEENSLAND

CITATION:

Camill Constructions Pty Ltd v Queensland Building Services Authority  [2013] QSC 275

PARTIES:

CAMILL CONSTRUCTIONS PTY LTD

(applicant)

v

QUEENSLAND BUILDING SERVICES AUTHORITY

(first respondent)

FILE NO/S:

BS 6699 of 2013

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

21 August 2013 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2013

JUDGE:

Douglas J

ORDER:

Application dismissed with costs.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the applicant builder was directed by the respondent building authority to rectify work – where the direction was mailed to the applicant – where the applicant received the direction late – where the applicant requested extra time and the building authority allowed the extra time – whether the extra time allowed cured any deficiency caused by the late receipt of the original letter

Acts Interpretation Act 1954, s 24AA, s 36
Queensland Building Services Authority Act 1991, s 72

JM Kelly (Project Builders) Proprietary Limited v Queensland Building Services Authority (Unreported, Supreme Court of Queensland, Peter Lyons J, 9 May 2013), distinguished
McNab Constructions Australia Proprietary Limited v Queensland Building Services Authority [2013] QSC 57, distinguished

COUNSEL:

L Burrow for the applicant

E Bird (solicitor) for the respondent

SOLICITORS:

Berrigan Doube Lawyers for the applicant

Solicitor for the Queensland Building Services Authority for the respondent

1. This is an application for a declaration that a direction given by the respondent Queensland Building Services Authority to the applicant, pursuant to section 72 of the Queensland Building Services Authority Act 1991 (Qld), is void or invalid. The direction was dated 3 August 2011 and directed the applicant to rectify work at a named property in Yeronga. As things transpired, the document containing the direction was mailed to the applicant on 3 August 2011, but not received by it in the post until 8 August, according to the evidence of the applicant. The 28 days said to be allowed to do the work was from 3 August so that when the document was received, the applicant effectively only had about 20 days in which to do the work.

1. In similar circumstances to those, it has been held in this court in McNab Constructions Australia Proprietary Limited v Queensland Building Services Authority [2013] QSC 57 and in JM Kelly (Project Builders) Proprietary Limited v Queensland Building Services Authority (Peter Lyons J; No 3907 of 2013, delivered 9 May 2013), that directions to rectify in such circumstances were void.  Here, however, the direction led to the applicant asking for a time extension of 28 days in respect of it.  The Authority then, by its letter of 25 August, extended the date that all outstanding work must be completed to 28 September 2011. 

1. The Authority argues that that extension cured any potential invalidity associated with the original direction being mailed and received later than the 28 day period. The 28 day period is relevant because s 72(1) of the Queensland Building Services Authority Act provides that “the Authority may direct a person to rectify a building work within the period stated in the direction” and s 72(3) provides that “the period stated in the direction must be at least 28 days”, subject to some exceptions that do not apply here. The argument for the applicant was that that period was, in effect, one which could not be amended, was mandatory and that the failure of the respondent to permit such a period to be effectively available to the applicant by mailing it a direction in the circumstances it did led to the direction pursuant to the Act to be one that was void and unable to be relied upon, for example, to permit an extension as the Authority purported to do, on the argument, on 25 August.

1. The argument does not appeal to me. It seems to me that the direction, when made, was potentially capable of being given in a way that complied with the Act. That could have been done, for example, by delivery of the direction to the builder or by it being sent by a facsimile to the builder on the day. The mere fact that it happened to be posted does not seem to me to have the effect that the decision itself or the direction itself, thereby retrospectively, as it were, became void. It was voidable subject to the power of the Court to declare it void at a later time. The interposition of the request for further time and the grant of the further time seems to me, as was submitted for the Authority, to be justifiable, pursuant to s 24AA of the Acts Interpretation Act 1954 (Qld), which permits the amendment of an instrument or decision.

1. The submission is that the direction was an instrument to which the section applied because “instrument” is defined to mean “any document” under s 36 of the Acts Interpretation Act.  That seems to me to be a valid submission.  It was submitted on behalf of the applicant that the statute, the Queensland Building Services Authority Act itself, evidenced a contrary intention that such an amendment ought not to be able to apply to instruments or decisions of this nature in reliance on authorities, particularly related to payments of money. Here, Mr Bird submitted that the obvious intention of the Act related to circumstances common in the building industry, where extensions of time are often required to enable work to be done because of weather conditions or industrial action and that there was nothing contrary to the intent of the Act in reading it, as one would normally, with s 24AA of the Acts Interpretation Act, to permit amendment of the decision made by the Authority.

1. The decision actually made by the Authority, in effect, allowed 51 days to rectify the work after the letter sent on 25 August.  It was also argued that that letter could be seen as a fresh direction, allowing 33 clear days for compliance.  But it seems to me to be appropriate simply to treat the extension of time letter as one amending the original direction, which was one that remained valid until declared to be void. 

1. The power to grant a declaration is discretionary in circumstances such as these, where the problem created by the mailing of the document was, in effect, corrected by the QBSA granting an extension.  There seems to me to be no valid ground on which I should exercise my discretion to grant a declaration. As was submitted, the facts display strong discretionary grounds to refuse such relief.  Accordingly, the application is dismissed.

ORDER:

1. The application is dismissed with costs.