Crisp v Queensland Building Services Authority
[2010] QCAT 263
•16 June 2010
CITATION: Crisp v Queensland Building Services Authority [2010] QCAT 263
PARTIES: Mr Neville Larsen Crisp v Queensland Building Services Authority
APPLICATION NUMBER: GAR079-10
MATTER TYPE: General administrative review matters
HEARING DATE: On the papers
HEARD AT: BRISBANE
DECISION OF: R Oliver
DELIVERED ON: 16 June 2010
DELIVERED AT: BRISBANE
ORDERS MADE:
1. The application for summary dismissal of the Application to Review is dismissed
CATCHWORDS : Application to strike out pursuant to section 47 of the QCAT Act; whether the Applicant is an “affected” person within the meaning of section 87 of the Queensland Building Services Authority Act; whether the Applicant is liable to refund insurance money paid out by the Authority under section 71 of the Queensland Building Services Authority. APPEARANCES and REPRESENTATION (if any):
Decision on the papers. REASONS FOR DECISION
The Queensland Building Services Authority (“the Authority”) applies for summary dismissal of the Applicant’s application to review a decision of the Authority on the grounds that the Applicant is not “affected” by the Authority’s decision of 10 February 2010.
The Applicant undertook building work at Lot 2, Woolshed Creek Road, Hattonvale. As a consequence of a complaint received, the Authority undertook a building inspection and concluded that the Applicant had performed significant defective building work at the site. Rather than issue a direction to rectify, the Authority advised the Applicant in its letter of 10 February 2010 that:
“This matter will now be assessed under the Statutory Warranty Scheme, to determine whether or not the defects can be rectified under the Scheme. For the record, I advise that the BSA has decided not to issue a direction in respect of the defective building work on the following basis:
§Based on your previous rectification efforts, BSA is of the view that you do not possess the requisite technical skills to adequately complete the rectification
§You have previously been provided with opportunities to rectify the defects, and those opportunities have either not be taken up or have resulted in rectification work which is itself defective”
In that letter, the Applicant was advised of his rights to seek a review of that decision in this Tribunal.
Such an application for review was filed on 10 March 2010. The Applicant’s right to review is contained in section 87 of the Queensland Building Services Authority Act (“the QBSA Act”) which provides:
“A person affected by a reviewable decision of the Authority may apply, as provided under the QCAT Act, to the Tribunal for review of the decision”.
The Authority’s submission
It is submitted by the Authority that the Applicant is unaffected by the decision made because:
a)“The decision causes the Applicant no detriment or prejudice.
b)That the Applicant is not directed to rectify the building work he performed, then there will be no note of that on his license.”
The Authority goes on to submit that the Applicant can carry out rectification work if the owner of the property permits him to do so. It is unnecessary for me to consider the relationship between the Applicant and the owner in this application.
Clearly the Tribunal has jurisdiction to strike out applications pursuant to section 47 of the QCAT Act if they are frivolous, vexatious or misconceived, or lack substance and otherwise an abuse of process.
If it is found that the Applicant is not a person “affected” by the decision then the application must be dismissed.
Applicants submissions
10. The Applicant has filed written submissions and contends that he is “affected” by the decision. That the “affect” of the decision is immediately apparent when one regard to the Statutory Insurance Scheme which operates under the QBSA Act. Here, the Authority intends to assess the homeowners claim under the Statutory Insurance Scheme. It then has the option to may seek recovery of any money paid out under the Scheme from the Applicant. On the other hand, if a direction to rectify issued, and the Applicant did manage to carry out rectification work to either the full or partial satisfaction of the Authority then his exposure to a claim for recovery of money under the Statutory Scheme would either be avoided completely, or limited.
Discussion
11. The dictionary meaning of “affect” is to “produce an effect on”[1] Mr Crisp who is the person to whom the decision is directed.
[1] Concise Oxford Dictionay
12. Therefore, having regard to the Authority’s submission it is true that by not directing the Applicant to carry out rectification to defective building work the Applicant has suffered no immediate detriment or prejudice but a detriment or prejudice will obviously be suffered once the Authority commences recovery action under section 71 of the QBSA Act. I have proceeded on the assumption that this is likely to occur because, in the submissions from the Authority, there is no suggestion that it intends to waive this entitlement.
13. I have therefore come to the conclusion that the Applicant is a person “affected” by the decision of the Authority and therefore consistent with the advice given to him in it’s decision he a statutory right to review the Authority’s decision.
14. Therefore, the application for summary dismissal of the application for review is dismissed.
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