Customizer Kitchens QLD v Queensland Building Services Authority

[2011] QCAT 13

CITATION:		Customizer Kitchens QLD v Queensland Building Services Authority [2011] QCAT 13
PARTIES:	Customizer Kitchens QLD
V
Queensland Building Services Authority

APPLICATION NUMBER:   GAR316-10

MATTER TYPE: General administrative review matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 10 January 2011

DELIVERED AT:      Brisbane

ORDERS MADE: The application to review the scope of works is dismissed.

CATCHWORDS : 

Jurisdiction - review of scope of works – where application to review scope or works filed outside 28 days time period – whether discretion to extend time – whether tribunal has jurisdiction

Queensland Building Services Authority Act 1991 s86(2)(c)

Queensland Civil and Administrative Tribunal Act 2009 s61

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

1. Customizer Kitchens QLD (“Customizer”) has applied for a review of a scope of works issued by the Authority under cover of letter dated 7 July 2010. The application was filed in the tribunal on 22 September 2010. The tribunal made directions requiring Customizer to apply to extend time for the filing of the application because it was filed more than 28 days after the Authority’s decision.

2. The Authority has filed an application to strike out Customizer’s application on the grounds that the tribunal lacks jurisdiction. It says that s61 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) does not operate to extend time because:

a)Section 61 of the QCAT Act relates only to procedural matters.

b)The extension of time required by Customizer is substantive, not procedural.

c)Section 86(2)(c) of the Queensland Building Services Authority Act 1991 (“QBSA Act”) precludes the extension of time.

1. Section 86(2)(c) of the QBSA Act states that the tribunal must not review a decision about 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, applied to the tribunal for a review of the decision.

2. As Senior Member Oliver 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]

3. Customizer did not file its application for review of the scope of works within 28 days. That defect cannot be cured by the operation of s61 of the QCAT Act. Accordingly, the tribunal has no jurisdiction to hear Customizer’s application. The application should be dismissed.