Carter v Queensland Building and Construction Commission - [2022] QCAT 431

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Carter v Queensland Building and Construction Commission & ors [2022] QCAT 431

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

DELIVERED ON:

22 December 2022

HEARING DATE:

14 November 2022

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

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…

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.

Keep reading for free

Create a free CaseChat account to read Carter v Queensland Building and Construction Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QCAT 431
Decision Date

CaseChat Overview and Summary

In the case of Carter v Queensland Building and Construction Commission, the applicant, Lousia Carter, sought review of a decision made by the Queensland Building and Construction Commission regarding works carried out at her property in Spring Hill. The property, previously the Main Roads Department Building and added to the Queensland Heritage Register in 2014, was sold to a developer and re-purposed into a combined hotel and residential apartment complex. Maxcon was the building contractor responsible for the works, which were completed on or around 9 September 2016. Carter lodged a complaint with the Commission on 21 February 2018, alleging issues related to water ingress and associated damage caused by the construction of a new apartment above her dwelling. The Commission issued a direction to rectify some of the complaint items on 10 May 2018, which Carter then sought to review in the Queensland Civil and Administrative Tribunal (QCAT) on 2 July 2019.

The legal issues before the court involved the validity and scope of notices to attend and/or produce documents issued by the Commission to two parties, Margaritis and Elzain, pursuant to section 97 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The court was required to determine whether the notices were correctly issued and if the applicants were entitled to be paid fees and allowances for their attendance and document production as stipulated in section 97(4) of the QCAT Act. Additionally, the court had to examine the statutory framework governing the Commission's powers under the Queensland Building and Construction Commission Act 1991 (QBCC Act) and its interaction with the QCAT Act.

The court examined the statutory provisions and the context in which the notices were issued. It found that the notices were correctly issued under section 97 of the QCAT Act. The court held that the applicants were entitled to be paid fees and allowances for their attendance and document production as per section 97(4) of the QCAT Act. The court further clarified the interplay between the QBCC Act and the QCAT Act, ensuring that the Commission's powers to issue notices aligned with the statutory framework and that the applicants' rights under the QCAT Act were upheld. The court's reasoning was grounded in the statutory language and the need to ensure procedural fairness and compliance with legislative mandates.

The final orders of the court affirmed the validity of the notices issued by the Commission to Margaritis and Elzain and mandated that the respective fees and allowances be paid to the applicants. The court's decision provided clarity on the procedural rights of parties involved in proceedings before the QCAT and reinforced the importance of adhering to statutory requirements in issuing notices under the QCAT Act.

Orders

Orders of the court

Full text does not contain this section.

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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.