Camill Constructions Pty Ltd v Queensland Building Services Authority

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…