Carter v Queensland Building and Construction Commission - [2023] QCAT 278

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Carter v Queensland Building and Construction Commission & Ors [2023] QCAT 278

PARTIES:

LOUISA CARTER

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
MAXCON CONSTRUCTIONS PTY LTD
BODY CORPORATE FOR THE JOHNSON CTS 49098
BODY CORPORATE FOR THE JOHNSON APARTMENTS CTS 49099

(respondents)

APPLICATION NO:

GAR259-19

MATTER TYPE:

Building matters

DELIVERED ON:

26 June 2023

HEARING DATE:

16 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

1.    The second respondent’s application filed 6 January 2023 for a stay of the proceeding is dismissed.

2.    The second respondent’s application filed 10 January 2023 for an extension of the time to comply with order 1 of the orders made by the Tribunal on 14 November 2022 is granted. The second respondent comply with the order by 4.00pm on 15 August 2023.

3.    The proceeding be fixed for hearing for four days commencing on the next available hearing date after 15 August 2023.

4.    The proceeding be listed for a directions hearing by telephone after 15 August 2023 and not less than fourteen days before the date fixed for the hearing of the proceeding. The purpose of the directions hearing is for the Tribunal to confirm with the parties:

(a)    the material they have filed and on which they intend to rely at the hearing;

(b)   the precise issues to be determined at the hearing;

(c)    the witnesses, if any, they require for cross-examination;

(d)   whether it is proposed the witnesses will be giving evidence in person or by remote means (specifying the mode of attendance);

(e)    any limitations on the time of availability of witness; and

(f)     any other issue necessary to ensure the proceeding is ready for hearing.

5.     This order be served on the parties by email.

CATCHWORDS:

APPLICATION FOR STAY – where one respondent commenced a proceeding in the Supreme Court of Queensland against another respondent nearly four years after commencement of the Tribunal proceeding – power to grant stay - considerations for the grant of a temporary stay – whether public interest or interests of justice favours grant of stay – whether claim sufficiently particularized.

Body Corporate and Community Management Act 1997 (Qld)

Queensland Building and Construction Act 1991 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(3), 58(1)

Chief Executive of the Department of Justice and Attorney-General v Kollosche & Anor [2015] QCAT 145

JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2011] QCAT 60

Stirling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 72

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

First respondent:

Second respondent:

Third and fourth respondents:

Ms Nean, Queensland Building and Construction Commission

Mr Kidston, instructed by Diakou Faigen

Mr Robinson of Robinson Locke

REASONS FOR DECISION

Introduction

On 2 July 2019 the applicant, Dr Louisa Carter, made application to the Tribunal for a review of two decisions of the first respondent, Queensland Building and Construction Commission (QBCC). The first decision, given on 10 May 2018, directed the second…

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: [2023] QCAT 278
Decision Date

CaseChat Overview and Summary

In the case of Carter v Queensland Building and Construction Commission, the dispute revolves around a claim by Dr Carter that water was entering her unit in The Johnson building due to a defective or incomplete installation of the rainwater drainage system by Maxcon, the builder. The dispute has progressed through various stages, including decisions by the Queensland Building and Construction Commission (QBCC) and an application by Dr Carter for a review of these decisions before the Queensland Civil and Administrative Tribunal (QCAT). The case has seen multiple delays, partly due to Maxcon's non-compliance with QCAT directions.

The central legal issues in this case were whether Maxcon's application for a stay of the proceeding and for an extension of time to comply with QCAT's directions should be granted, and whether the proceeding should proceed as scheduled. The case also considered the implications of Maxcon's proposal to resolve the matter and whether this proposal should affect the scheduling of the hearing and the preparation of the parties for the hearing.

In its decision, the Tribunal dismissed Maxcon's application for a stay of the review proceeding, finding that the proposal to resolve the matter did not warrant a stay. However, the Tribunal granted Maxcon's application for an extension of time to comply with QCAT's directions, setting a new deadline for compliance of 4:00pm on 15 August 2023. The Tribunal also fixed the review proceeding for hearing for four days commencing on the next available date after 15 August 2023, and scheduled a directions hearing to ensure the proceeding was ready for hearing. This directions hearing aimed to clarify the material to be relied on, the issues to be determined, and the logistics of witness attendance.

The final orders of the Tribunal included the dismissal of Maxcon's application for a stay, the granting of an extension for compliance with QCAT's directions, the fixing of the hearing dates, and the scheduling of a directions hearing to prepare for the substantive hearing. The orders were to be served on the parties by email, ensuring all parties were aware of the new timelines and the requirements for the upcoming hearings.

Orders

Orders of the court

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Background

Background to the litigation

On 8 October 2020 Body Corporate for the Johnson Apartments CTS49099 (Subsidiary Body Corporate) was joined as fourth respondent to the proceeding.Background. Dr Carter is the owner of her unit. Maxcon is the builder of the building in which Dr Carter’s unit is located. The building is known “The Johnson”. The Principal Body Corporate and Subsidiary Body Corporate (together, Bodies Corporate) are the bodies corporate for The Johnson. Dr Carter complained about water entering her unit on 21 February 2018. She asked that QBCC give a direction to Maxcon to rectify building work she considers is defective or incomplete. On 10 May 2018 QBCC decided Maxcon is responsible “… in that the installation of the rain water drainage system at the top units were not installed in accordance with the relevant Australian Standards and or the BCA FF1.2 and 3.5.2 (gutters and downpipes) resulting in water being directed to the units below and caused extensive damage to the adjacent building elements including the carpets …” (first decision). On 11 June 2018 QBCC reinspected Dr Carter’s unit and, on 14 June 2018, decided Maxcon had complied with the direction to rectify it having, amongst other things, “… installed roofing tray flashing and spreaders to the drainage system to the lower roof …” (second decision). On 2 July 2019 Dr Carter applied to the Tribunal for a review of the first and second decisions (Tribunal proceeding). Progressing the Tribunal proceeding has been delayed for several years, in part because of Maxcon’s disregard of directions given by the Tribunal. On 12 May 2022 the Tribunal afforded it a final opportunity to file material. It sought an extension of the time to do so. Despite the extension being granted, it did not file any material. The Tribunal proceeding was fixed for hearing for four days, commencing on 30 January 2023. The dates, on 3 January 2023, were vacated, and that the Tribunal gave directions for the filing of any interlocutory application for the future conduct of the Tribunal proceeding.Applications There are five applications before the Tribunal:(a)an application by Maxcon filed 29 November 2022 for the following directions:1. The proceeding be referred to and listed for a compulsory conference before any hearing of the matter.2. The compulsory conference be held in person at the relevant property at The Johnson, 477 Boundary Street, Spring Hill, Queensland 4000.3. The compulsory conference be held in the presence of each of the parties’ experts who will be required to have an experts’ conclave as soon as practicable after the compulsory conference to attempt to agree a resolution of the matter.4. The decision/orders of the Tribunal made 14 November 2022 be vacated.5. The hearing scheduled for 30 and 31 January 2023 and 1 and 2 February 2023 be vacated.6. In the alternative to 4 above:(a)the time and date for compliance with orders 1 and 3 be extended to a date to be fixed after the compulsory conference/experts’ conclave;(b)the time and date for attendance to give evidence referred to in orders 2 and 3 be extended to a date to be fixed after the compulsory conference/experts’ conclave.7. In the alternative to 5 above, the hearing scheduled for 30 and 31 January 2023 and 1 and 2 February 2023 be adjourned to a date after the compulsory conference/experts’ conclave.The reasons for the application are in the following terms:1. [Maxcon] wrote to the parties on 12 September 2022 providing them with a without prejudice proposal for Maxcon to carry out certain works to the roof drainage system the subject of this proceeding, at its cost, which Maxcon and its hydraulic consulting engineer believe will satisfy all of the parties’ concerns outlined in their respective reports filed with the Tribunal in this matter and result in a fully compliant roof drainage system (proposal).2. On 17 November 2022 (after the Tribunal made the orders above on 14 November 2022) the solicitors for the [Bodies Corporate] sent a letter to the solicitors for Maxcon, in essence agreeing to the proposal subject to certain clarifications; a copy of which is attached. Maxcon is of the strong view that those clarifications which are only minor, can be provided to satisfy the [Bodies Corporate] to achieve a resolution of the matter.3. The proposal does not directly or adversely affect the [QBCC] and if accepted, would lead to a favourable outcome for the benefit of all the residents including [Dr Carter] and the [Bodies Corporate] and if that can be achieved, the QBCC should fully support the resolution rather than standing in its way.4. The proposal if accepted by the parties and their experts would provide a full and final resolution to the proceeding without the parties being required to incur further costs and inconvenience including legal costs (resolution).5. The resolution would provide a better and more certain outcome to the parties than proceeding to a 4-day hearing of the matter simply to review a decision made by QBCC the outcome of which is not guaranteed to fix the roof drainage system the subject of this proceeding.The application has been overtaken by events and may be put to one side.(b)an application by QBCC filed 22 December 2022 for a directions hearing. The application, once again, has been overtaken by events and may be put to one side.(c)an application by Maxcon filed 6 January 2023 for a stay of the Tribunal proceeding “… pending final determination, including all appeals, of Supreme Court Proceeding No. BS10826/22 ...”;(d)an application by Maxcon filed 10 January 2023 for an extension of the time for compliance with the directions given by the Tribunal on 14 November 2022; and(e)an application by Dr Carter filed 24 January 2023 for leave to appear on 30 January 2023 and all future hearings of the review proceeding by telephone. The application was granted in respect of the hearings on 30 January 2023 and 16 February 2023.Hearing on 30 January 2023

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Directions will be given for Maxcon complying with order 1 of the orders made by the Tribunal on 14 November 2022, the proceeding being fixed for hearing and a directions hearing.Decision The decision of the Tribunal is as follows:(a)Maxcon’s application filed 6 January 2023 for a stay of the review proceeding is dismissed;(b)Maxcon’s application filed 10 January 2023 for an extension of the time to comply with order 1 of the orders made by the Tribunal on 14 November 2022 is granted. Maxcon comply with the order by 4.00pm on 15 August 2023;(c)the Tribunal proceeding be fixed for hearing for four days commencing on the next available hearing date after 15 August 2023;(d)the Tribunal proceeding be listed for a directions hearing by telephone after 15 August 2023 and not less than fourteen days before the date fixed for the hearing of the proceeding. The purpose of the directions hearing is for the Tribunal to confirm with the parties:(i) the material they have filed and on which they intend to rely at hearing;(ii) the precise issues to be determined at the hearing;(iii) the witnesses, if any, they require for cross-examination;(iv) whether it is proposed the witnesses will be giving evidence in person or by remote means (specifying the mode of attendance);(v) any limitations on the time of availability of witness; and(vi) any other issue necessary to ensure the proceeding is ready for hearing; and(e)this order be served on the parties by email.

Ratio Decidendi

Legal Principle Established

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