Carter v Queensland Building and Construction Commission - [2022] QCAT 433

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Carter v Queensland Building and Construction Commission & Ors [2022] QCAT 433

PARTIES:

louise carter

(applicant)

v

queensland building and construction commission
maxcon constructions pty ltd
the body corporate for the johnson cts 49098
body corporate for the johnson apartments cts 49099

(respondent)

APPLICATION NO/S:

GAR259-19

MATTER TYPE:

General administrative review matters

REASONS DELIVERED ON:

22 December 2022

HEARING DATE:

14 November 2022

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1.       The application for a Notice to Produce filed by Queensland Building and Construction Commission on 22 July 22 is allowed in the following terms:

(a)   Maxon Constructions Pty Ltd produce any documents in its possession to the Tribunal and each of the parties in GAR259-19 which relate to the following matters, after the date of 14 June 2018:

(i)         Any defective, non-compliant or unsatisfactory component of the rainwater drainage system (including both the system installed to level 16 and the siphonic system (Rainwater Drainage System) at 477 Boundary Street, Spring Hill in the State of Queensland (Property);

(ii)       Any water ingress caused by, or potentially caused by the Rainwater Drainage System at the Property;

(iii)      Any documents, including expert opinion, regarding the performance of the Rainwater Drainage System at the Property;

(iv)       The physical state of the Rainwater Drainage System at the Property (as altered by any works referred to below);

(v)        Any work undertaken to the Rainwater Drainage System at the Property, directly or indirectly, by Maxcon; and

(vi)       Any documents, including expert opinion, regarding future work to be undertaken or recommended to be undertaken, to the Rainwater Drainage System at the Property, by:

4:00pm on 4 January 2023.

2.       The application for witness hearing notice filed by the Queensland Building and Construction Commission on 22 July 2022 (Anthony Elzain) is allowed in the following terms:

(a)   Anthony Elzain, of 48 Doncaster Road, Balwyn North in the State of Victoria, attend the hearing listed on 30, 31 January and 1, 2 February 2023 to give evidence.

3.       The application for witness hearing notice and notice to produce filed by the Queensland Building and Construction Commission on 22 July 2022 (Aris Silvio Margaritis) is allowed in the following terms:

(a)   Aris Silvio Margaritis, of 20 Laurina Way Peregian Springs in the State of Queensland attend the hearing listed on 30, 31 January and 1, 2 February 2023 and produce any documents in his possession, including notes, diaries, photographs and correspondence, which relate to the following matters, after the date of 14 June 2018:

(i)         Any defective, non-compliant or unsatisfactory components of the rainwater drainage system (including both the system installed to level 16 and the siphonic system) (Rainwater Drainage System) at 477 Boundary Street, Spring Hill in the State of Queensland (Property);

(ii)       Any water ingress caused by, or potentially caused by the Rainwater Drainage System at the Property;

(iii)      Any documents, including expert opinion, regarding the performance of the Rainwater Drainage system…

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: [2022] QCAT 433
Decision Date: 22 December 2022

CaseChat Overview and Summary

The case of Carter v Queensland Building and Construction Commission involves a dispute between the applicant, Louisa Carter, who owns a unit at a property in Spring Hill, and the Queensland Building and Construction Commission (the Commission). The property, previously the Main Roads Department Building, was sold to a developer and re-purposed into a hotel and residential apartment complex. Maxcon, the building contractor responsible for the works, completed the project in 2016. Carter lodged a complaint with the Commission in 2018 regarding water ingress and associated damage allegedly caused by the construction of a new apartment above her dwelling. The Commission issued a direction to rectify certain complaint items to Maxcon, but Carter applied for review of that decision.

The legal issues before the court included whether the Queensland Civil and Administrative Tribunal (QCAT) should order the registrar to issue notices to attend and/or produce documents to the former employee of Maxcon, Aris Silvio Margaritis, who resides in Queensland, and whether the Tribunal should order the registrar to issue a notice to attend to the director of Maxcon, Anthony Elzain, who resides in Victoria. Additionally, the court had to decide whether leave of a judge or magistrate was required to serve the notice to attend interstate. The applicant, Carter, sought orders for Maxcon and the Commission to produce documents and for the named individuals to attend the hearing to give evidence.

The QCAT considered the applications and allowed the orders for notices to attend and produce documents to be issued. The court noted that section 97 of the QCAT Act provides that the tribunal or the principal registrar may, by written notice, require a person to attend at a stated hearing of a proceeding to give evidence or to produce a stated document or other thing to the tribunal. The court held that the applications were made in accordance with the statutory framework, and it was in the interest of justice to allow the orders. The court also noted that the individuals were entitled to be paid fees and allowances prescribed under a regulation or, if no fees and allowances are prescribed, the fees and allowances decided by the tribunal. The court further noted that the fees and allowances must be paid at the time prescribed under a regulation.

In conclusion, the QCAT allowed the applications for notices to attend and produce documents to be issued to the former employee of Maxcon and the director of Maxcon. The former employee of Maxcon was required to attend the hearing and produce documents in his possession, while the director of Maxcon was required to attend the hearing to give evidence. The orders were made in the interest of justice and in accordance with the statutory framework.

Orders

Orders of the court

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. The application for a Notice to Produce filed by Queensland Building and Construction Commission on 22 July 22 is allowed in the following terms:

(a) Maxon Constructions Pty Ltd produce any documents in its possession to the Tribunal and each of the parties in GAR259-19 which relate to the following matters, after the date of 14 June 2018:

(i) Any defective, non-compliant or unsatisfactory component of the rainwater drainage system (including both the system installed to level 16 and the siphonic system (Rainwater Drainage System) at 477 Boundary Street, Spring Hill in the State of Queensland (Property);

(ii) Any water ingress caused by, or potentially caused by the Rainwater Drainage System at the Property;

(iii) Any documents, including expert opinion, regarding the performance of the Rainwater Drainage System at the Property;

(iv) The physical state of the Rainwater Drainage System at the Property (as altered by any works referred to below);

(v) Any work undertaken to the Rainwater Drainage System at the Property, directly or indirectly, by Maxcon; and

(vi) Any documents, including expert opinion, regarding future work to be undertaken or recommended to be undertaken, to the Rainwater Drainage System at the Property, by:

4:00pm on 4 January 2023.

2. The application for witness hearing notice filed by the Queensland Building and Construction Commission on 22 July 2022 (Anthony Elzain) is allowed in the following terms:

(a) Anthony Elzain, of 48 Doncaster Road, Balwyn North in the State of Victoria, attend the hearing listed on 30, 31 January and 1, 2 February 2023 to give evidence.

3. The application for witness hearing notice and notice to produce filed by the Queensland Building and Construction Commission on 22 July 2022 (Aris Silvio Margaritis) is allowed in the following terms:

(a) Aris Silvio Margaritis, of 20 Laurina Way Peregian Springs in the State of Queensland attend the hearing listed on 30, 31 January and 1, 2 February 2023 and produce any documents in his possession, including notes, diaries, photographs and correspondence, which relate to the following matters, after the date of 14 June 2018:

(i) Any defective, non-compliant or unsatisfactory components of the rainwater drainage system (including both the system installed to level 16 and the siphonic system) (Rainwater Drainage System) at 477 Boundary Street, Spring Hill in the State of Queensland (Property);

(ii) Any water ingress caused by, or potentially caused by the Rainwater Drainage System at the Property;

(iii) Any documents, including expert opinion, regarding the performance of the Rainwater Drainage system at the Property;

(iv) The physical state of the Rainwater Drainage System at the Property, directly or indirectly, by Maxcon;

(v) Any documents, including expert opinion, regarding future works to be undertaken, or recommended to be undertaken, to the Rainwater Drainage System at the Property, by:

4:00pm on 4 January 2023

Background

Background to the litigation

On 28 November 2022 I received a Request for Reasons from the legal representative of Maxcon. The order for Maxcon, which is a party to the proceedings, to produce documents was made pursuant to s 62(3) of the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act). Section 122(4) of the QCAT Act provides that the Tribunal is not required to comply with a request for reasons for a decision made under certain provisions, including s 62(3). For reasons of efficiency, and given the hearing of this matter has been set down to commence on 30 January 2023, I do not propose to provide reasons in respect of the orders made in respect of the Maxcon application. I will proceed to provide reasons for the orders made in respect of the Margaritis application and the Elzain application.Background Lousia Carter, the applicant, is the owner of a unit at a property in Spring Hill (dwelling). The property was formerly the Main Roads Department Building and in 2014 was added to the Queensland Heritage Register. The property was sold to a developer, Asian Pacific Group, now known as Deague Group, and re-purposed into a combined hotel and residential apartment complex. Maxcon was the building contractor responsible for the works. The works were completed on or around 9 September 2016, when the Form 11 certificate of classification was issued in respect of the property. On 21 February 2018 the applicant made a complaint to the Commission regarding the works at the dwelling. In summary the complaints relate to issues that allegedly arose as a result of the construction of a new apartment above the applicant’s dwelling. The applicant lists water ingress and associated damage allegedly caused by that water ingress as complaint items. On 10 May 2018 the Commission made a decision to give a direction to rectify to Maxcon pursuant to s 72 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) in respect of some complaint items but not others. On 2 July 2019 Louisa Carter applied to the Tribunal for review of that decision.Overview of relevant statutory framework: Notices to Attend and/or Produce Documents The Margaritis application and the Elzain application were made by the Commission pursuant to s 97 of the QCAT Act, using a Form 38 (the approved form for such an application). Section 97 provides:97 REQUIRING WITNESS TO ATTEND OR PRODUCE DOCUMENT OR THING(1) The tribunal or the principal registrar may, by written notice, require a person to—(a) attend at a stated hearing of a proceeding to give evidence; or(b) produce a stated document or other thing to the tribunal.Note—See section 214 for consequences of failing to comply with a notice under this subsection.(2) The tribunal may give a notice under subsection (1) on the application of a party to a proceeding or on its own initiative.(3) The principal registrar may give a notice under subsection (1) on the application of a party to a proceeding.(4) A person who is given a notice under subsection (1) is entitled to be paid the fees and allowances prescribed under a regulation or, if no fees and allowances are prescribed, the fees and allowances decided by the tribunal.(5) Fees and allowances payable to a person under subsection (4) must be paid—(a) if the person was given the notice on the application of a party to the proceeding—by the party; or(b) otherwise—by all of the parties in the proportions decided by the tribunal.(6) The fees and allowances must be paid at the time prescribed under a regulation.

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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