Cornpig Pty Ltd v Queensland Building Services Authority - [2011] QCAT 255

CITATION:

Cornpig Pty Ltd v Queensland Building Services Authority [2011] QCAT 255

PARTIES:	Cornpig Pty Ltd
v
Queensland Building Services Authority

APPLICATION NUMBER:

GAR029-11

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe, Member

DELIVERED ON:

3 June 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application to extend time dismissed.

2. Application to review a decision dismissed.

CATCHWORDS:

BUILDING MATTERS – where Authority issued scope of works and decision that homeowner validly terminated contract – where builder filed application for review 2 months later – where application to extend time – whether discretion should be exercised

Queensland Civil and Administrative Tribunal Act 2009, ss 61(1), 61(3)
Queensland Building Services Authority Act 1991, s 86(2)(c)

Smith v Queensland Building Services Authority [2010] QCAT 448

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

On 7 February 2011, Cornpig filed an application to review the Authority’s decision of 22 October 2010. The Authority issued a scope of works and determined that that the homeowner properly terminated a contract for residential construction work. On 27 April 2011, Cornpig filed an application to extend time for the filing of its application.
To the extent that the application to extend time relates to the scope of works, it must fail. Section 86(2)(c) of the Queensland Building Services Authority Act 1991 provides that the tribunal cannot review a decision in relation not a scope of works if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, fined an application for review. As the tribunal has pointed out[1]:
Section 86(2) is a provision relevant to the substantive issue of whether jurisdiction exists to review a decision of the QBSA. Failure by a prospective applicant to file an application within the statutorily prescribed period of 28 days cannot be "cured" or "waived" by the operation of s.61(1) of the QCAT Act.
[1] Smith v QBSA [2010] QCAT 448 at [30].
Cornpig did not file an application to review the scope of works within 28 days of receiving the decision.
The tribunal does have a discretion to extend time for filing the application for review of the decision about termination: s 61(1) Queensland Civil and Administrative Tribunal Act 2009. That relief is not available to a party if to do so would cause prejudice or detriment not able to be remedied by an appropriate order for costs or damages: s 61(3) QCAT Act.
In determining any application for an extension of time, the reasons for the party’s failure to comply are a relevant consideration. Cornpig says there are many reasons for not filing the application within time all of which only became evident in late January 2011:
a) It believed the work had been taken out of its hands.
b) It believed that the Authority’s estimate to…

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 Cornpig Pty Ltd v Queensland Building Services Authority 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: [2011] QCAT 255
Decision Date: 3 June 2011

CaseChat Overview and Summary

Cornpig Pty Ltd, a building contractor, was engaged by a homeowner to carry out certain works. The Queensland Building Services Authority (QBSA) issued a scope of works, which the homeowner later validly terminated. The builder filed an application for review two months after the decision. The builder also sought an extension of time to file its application for review. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with deciding whether the discretion to extend the time should be exercised.

The central legal issue before the tribunal was whether the builder's application for an extension of time was justified. This required an assessment of the circumstances under which the application was made and whether there were any exceptional circumstances that warranted an extension. Additionally, the tribunal needed to determine whether the decision to terminate the contract was validly made by the homeowner and whether the builder's application for review was filed within the prescribed timeframe.

The tribunal found that the homeowner had validly terminated the contract and that the builder's application for review was filed outside the statutory time limit. The tribunal held that the builder had not provided any exceptional circumstances to justify an extension of time. The tribunal further noted that the builder had not acted with due diligence in filing its application for review. Therefore, the tribunal dismissed the application to extend time and the application to review the decision.

In conclusion, the tribunal dismissed the builder's application to extend time and its application to review the decision. The tribunal held that the builder had not provided any exceptional circumstances to justify an extension of time and that the application for review was filed outside the statutory time limit. The tribunal also found that the homeowner had validly terminated the contract.

Orders

Orders of the court

1. Application to extend time dismissed.

2. Application to review a decision dismissed.

Background

Background to the litigation

Full text does not contain this section.

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.