Cyclone Constructions Pty Ltd v Queensland Building and Construction Commission

[2014] QCAT 3

CITATION: Cyclone Constructions Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 003

PARTIES:	Cyclone Constructions Pty Ltd (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER: GAR084-13

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT:  Brisbane

DECISION OF: Member Howe

DELIVERED ON: 7 January 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.   The application for a stay of the operation of the Scope of Works is refused

CATCHWORDS:

Application for a stay – insurance claim already processed and paid – grant of stay without purpose or utility

Queensland Building and Construction Commission Act 1991 s 86

Cyclone Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 621
Cyclone Constructions Pty Ltd v Queensland Building Services Authority [2013] QCAT 484

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Background

1. By order made 12 September 2013 the Tribunal declared that Cyclone Constructions Pty Ltd had made application for review of the decision of the Commission about the amended Scope of Works to be undertaken under the statutory insurance scheme to rectify defective building work within the time required by s 86 of the Queensland Building and Construction Commission Act 1991.[1]

   [1]Cyclone Constructions Pty Ltd v Queensland Building Services Authority [2013] QCAT 484.

2. Prior to that order being made, in March 2012 the Commission had sent a Notice of Potential Debt to Cyclone advising that a claim under the statutory insurance scheme had been approved and enclosing a Scope of Works covering the remedial work.

3. Cyclone applied to the Tribunal to both review that decision and to extend time to enable it to make the application for review.  Both applications were dismissed[2] on the basis the application was out of time.

   [2]Cyclone Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 621.

4. Subsequently the Commission concluded more extensive remedial work was necessary to remedy the defective work than first estimated.

5. A second Notice of Potential Debt with an amended Scope of Works was issued.  Cyclone applied for a review of the second Scope of Works and also applied for a stay to the operation of that Scope of Works.

6. As stated, the Tribunal found on 12 September 2013 that Cyclone had made application for review of the amended Scope of Works within time.  The matter of the stay application was not dealt with at that time, and that is the matter presently requiring attention.

7. The Commission submits the stay should be refused because there is no utility in making such an order.  The claim under the statutory insurance scheme has already been approved.  The rectification work has already been completed.  The rectification work has been paid for.

8. The Commission accepted the owner’s claim under the statutory insurance scheme in a timely fashion because amongst other things there was the potential for further deterioration in the dwelling.  There was nothing objectionable in that.  Indeed the owner probably thought it was only appropriate.

9. There was unfortunate confusion in Cyclone’s application for review of the Scope of Works and notice of the review was only given to the Commission subsequent to acceptance of the owner’s claim under the insurance. 

10. The extent of Cyclone’s liability will appropriately be determined during the review of the Scope of Works application.  There is no utility or sense in ordering a stay in the operation of the Scope of Works at this late stage[3].

    [3]Russell v Queensland Building Services Authority [2013] QCAT 329.

11. The application for a stay should be refused.