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

CITATION:

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

PARTIES:	Cyclone Constructions Pty Ltd (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR084-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Michael Howe, Member

DELIVERED ON:

12 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Tribunal declares Cyclone Constructions Pty Ltd made application for review of the decision of the Authority about the amended Scope of Works to be undertaken under the statutory insurance scheme to rectify defective building work within the time required by section 86 of the Queensland Building Services Authority Act 1991.

2. The matter be listed for a directions hearing at the next available hearing date.

CATCHWORDS:

APPLICATION FOR REVIEW – date of application – application not kept on registry file – application out of time – application not sealed - procedural or substantive defect – service on a corporation – principal place of business – principal office – recognized companies – admission as to service – form of application in compliance with Act

Queensland Civil and Administrative Tribunal Act 2009 ss 24(1)(c), 33(2),
Queensland Civil and Administrative Tribunal Rules 2009 s 31
Queensland Building Services Authority Act 1991 ss 86(1)(g), 86(2)(b)&(c), 109A
Acts Interpretation Act 1954 (Qld) s 39
Acts Interpretation Act 1901 (Cth) s 28A
Corporations Act 2001(Cth) s 109X
Companies Act 1961(Cth)
Companies Act Amendment Act 1974 (Qld) s 343C
Companies (Application of Laws) Act 1981(Qld) Part XIII Div 4

Cyclone Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 621
TBK Beef Pty Ltd v Ark Mangoes Pty Ltd [2012] NTSC 44
von Risefer v Mainfreight International Pty Ltd (2009) 25 VR 366
Robuild Pty Ltd v Queensland Building Services Authority [2013] QCAT 197
Polstar v Agnew (2007) 208 FLR 226
QBSA v Russell Ian Watkins [2013] QDC 198
Smith v Queensland Building Services Authority [2010] QCAT 448
Cardillo v Queensland Building Services Authority [2011] QCAT 574
Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCAT 180

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

Cyclone Constructions Pty Ltd is a building company. In about 2004 Cyclone did building work at Sanctuary Cove. In 2011 the owner complained to Cyclone about water entry from the roof.
Mr Thompson is the sole director and the secretary of Cyclone. He inspected the roof. He said it was dented, possibly caused by a fallen tree branch, and the leak wasn’t his fault. He told the owner to claim under his general insurance.
Instead the owner complained to the Queensland Building Services Authority about Cyclone. In January 2012 the Authority issued Cyclone with a direction to rectify defective building work.
There was a discussion between Mr Thompson and an officer of the Authority. Mr Thompson advised his personal address was 6/10 Imperial Parade,…

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.

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Details

Case: [2013] QCAT 484
Decision Date

CaseChat Overview and Summary

Cyclone Constructions Pty Ltd, a building company, applied to the Queensland Civil and Administrative Tribunal (QCAT) for a review of a decision made by the Queensland Building Services Authority (QBSA) regarding the scope of works required to rectify defective building work. The primary legal issues revolved around the timeliness of the application for review and the validity of service on the company. Specifically, the court had to determine whether the application for review was lodged within the statutory time limit and whether the QBSA had properly served its decision on Cyclone Constructions.

The QBSA argued that the application for review was out of time and that service of the decision was ineffective because it was sent to an address that was not the company's principal office. The QCAT Member found that service by post to the principal place of business did not constitute effective service as a principal office under the applicable legislation. Furthermore, the Member held that emails sent by Cyclone Constructions' representative did not constitute a clear and unequivocal admission of receipt of the decision prior to the date Cyclone Constructions actually became aware of it.

Regarding the application for review, the Member concluded that despite procedural deficiencies in the filing process, Cyclone Constructions had effectively lodged its application within the requisite time frame. The Member exercised discretion under the QCAT Act to waive the procedural defect, finding that the application was made in good faith and that the QBSA had not suffered significant prejudice. Consequently, the tribunal allowed the application for review and ordered that the matter proceed to a hearing.

The Member's decision highlights the importance of strict compliance with statutory time limits for applications for review and the necessity for proper service of documents in administrative law proceedings. However, it also underscores the tribunal's discretion to mitigate procedural irregularities where the essence of the application has been met and no substantial prejudice has resulted.

Orders