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Cardillo v Queensland Building Services Authority

Cardillo v Queensland Building Services Authority

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Case Copied 21 November 2011 13 min read

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CITATION:

Cardillo v Queensland Building Services Authority [2011] QCAT 574

PARTIES:	John Michael Cardillo (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR215-11

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Michael Howe, Member

DELIVERED ON:

21 November 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

Application for extension of time within which to review decisions of the Queensland Building Services Authority dismissed.

CATCHWORDS:

Building and Construction – Application to review a decision of the Queensland Building Services Authority – application out of time – whether s 61 QCAT Act relief from procedural requirements able to be utilised – mandatory exclusion provisions of s 86(2)(c) Queensland Building Services Authority Act 1991 – factors for consideration in grant of extension of time

Queensland Civil and Administrative Tribunal Act2009, ss 33(3), 33(4) (a), 61(1)
Queensland Building Services Authority Act 1991, ss 86(1)(g) and (i), 86(2), 87

Smith v Queensland Building Services Authority [2010] QCAT 448
Gallagher v Queensland Building Services Authority [2010] QCAT 383
CMC v Chapman & Anor [2011] QCAT 229
Lucic v Nolan [1982] FCA 217
Hunter Valley Developments Pty Ltd v Barry Cohen Minister for Home Affairs [1984] FCA 176 at [18]

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 Act2009 (QCAT Act).

REASONS FOR DECISION

The Application

Mr Cardillo seeks an extension of time to apply for review of two decisions of the Queensland Building Services Authority, first that a domestic building contract has been validly terminated between owner and builder and second a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work.

Background

On or about 22 July 2009 Mr Cardillo entered into a building contract with an owner to perform extensive excavation and renovation work at a dwelling at Kelvin Grove.
On or about 28 October 2010 the Queensland Building Services Authority received a complaint from the owner alleging defective and incomplete work carried out by Mr Cardillo. At the time the Authority was provided with a copy of a notice to remedy breach of contract forwarded to Mr Cardillo by solicitors acting for the owner dated 7 October 2010 and a subsequent letter of termination of the contract by those same solicitors to Mr Cardillo dated 26 October 2010.
An inspection was carried out by the Authority on 1 December 2010. Subsequently on 4 March 2011 a Direction to Rectify and/or Complete work was issued to Mr Cardillo requiring rectification of 13 items within 28 days. Mr Cardillo requested an extension of time to perform the rectification work, which was granted to 15 April 2011, and all items were rectified by then save three.
The Authority says it posted a letter to Mr Cardillo on 3 May 2011 advising that a claim had been received in relation to the non-completion of work at the property, advising that in…

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.

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Details

Case: [2011] QCAT 574
Decision Date: 21 November 2011

CaseChat Overview and Summary

The case of Cardillo v Queensland Building Services Authority involved an application to review decisions made by the Queensland Building Services Authority. The applicant sought an extension of time to lodge the review application, arguing that the application was out of time. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether the statutory provisions allowing relief from procedural requirements could be utilised, considering the mandatory exclusion provisions of the Queensland Building Services Authority Act 1991. Specifically, the court had to consider whether section 86(2)(c) of the Act precluded the grant of an extension of time, and if not, what factors should be considered in granting such an extension.

The central legal issues before the tribunal were whether the applicant could rely on section 61 of the QCAT Act to seek relief from the procedural requirement of time limits, and whether the exclusion in section 86(2)(c) of the Queensland Building Services Authority Act 1991 precluded such relief. The applicant argued that despite the statutory exclusion, QCAT retained the discretion to grant an extension of time if it was just and equitable to do so. The tribunal considered the balance of convenience, the degree of fault, and the prejudice to the other party as key factors in determining whether to grant an extension of time.

In dismissing the application for an extension of time, the tribunal held that the mandatory exclusion in section 86(2)(c) of the Queensland Building Services Authority Act 1991 precluded the tribunal from exercising its discretion under section 61 of the QCAT Act to grant an extension. The tribunal emphasised that the exclusion was clear and unequivocal, and that the discretion under section 61 could not be utilised in circumstances where the exclusion applied. The tribunal also noted that the applicant's degree of fault and the prejudice to the other party weighed against granting an extension of time. Consequently, the application for an extension of time was dismissed.

No further orders were made by the tribunal beyond the dismissal of the application for an extension of time. The tribunal confirmed that the application to review the decisions of the Queensland Building Services Authority was time-barred and could not proceed.

Orders

Orders of the court

Application for extension of time within which to review decisions of the Queensland Building Services Authority dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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