Dong v Queensland Building and Construction Commission - [2024] QCAT 176

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Dong v Queensland Building and Construction Commission [2024] QCAT 176

PARTIES:

YAN QIU DONG

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR444-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

29 April 2024

HEARING DATE:

4 March 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

1. The application to dismiss or strike out a proceeding is granted.

2. The application to review the decision not to give a direction to rectify is dismissed, pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – general administrative review – where completed building inspection the subject of a decision not to issue a direction to rectify – whether s 72A(4) of the Queensland Building and Construction Act 1991 (Qld) applies – whether application to review should be struck out under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld), s 72A(4), s 86, s 87

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 24, s 47, s 61

Stephens v QBCC [2018] QCAT 281

Schauer v KJ & S O'Brien Contractor Pty Ltd [2019] QCAT 37

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

On 26 August 2015 ML Crosby & Co and the previous owner, Michael Low, entered into a contract for the moving and re-stumping of a house. The work was completed on or about 9 September 2016.
On 6 December 2020 Yan Qiu Dong (‘the applicant’) purchased the property.
On 24 August 2022 the QBCC received a complaint from the applicant in relation to alleged defective building work at the property.
On 19 April 2023 an inspection was carried out by a QBCC building inspector.
On 21 April 2023 the QBCC gave a decision not to give a direction to rectify (DTR) and that cover was not available under the statutory insurance scheme.
On 18 May 2023 the QBCC received an internal review application seeking a review of the decision not to give a DTR.
On 14 June 2023 the QBCC made the internal review decision not to give a DTR on the basis that the statutory timeframe to give a DTR had expired, pursuant to s 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
On 3 July 2023 the applicant filed an application to review that decision.
On 10 November 2023 the QBCC filed an application seeking to dismiss the review proceedings pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
Statutory framework
Section 24(1) of the QCAT Act sets out what orders the tribunal may make in a review proceeding. They include an order to confirm or amend…

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: [2024] QCAT 176
Decision Date: 29 April 2024

CaseChat Overview and Summary

Dong sought to challenge a decision by the Queensland Building and Construction Commission (QBCC) not to issue a direction to rectify (DTR) in relation to building work completed on 9 September 2016. The dispute reached the Queensland Civil and Administrative Tribunal (QCAT), which considered whether to strike out Dong's application to review the QBCC's decision under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The central issue was whether the QCAT had the jurisdiction to issue a DTR, given the time limits set out in section 72A(4) of the Queensland Building and Construction Act 1991 (QBCC Act).

The court determined that the time for issuing a DTR had expired by 10 March 2023, six years and six months after the completion of the building work. The court held that the QBCC's decision not to apply for an extension of time under section 72A(4) was not reviewable as it did not fall within the tribunal's jurisdiction. The court further held that the time limit under section 72A(4) was substantive rather than procedural, and therefore the QCAT did not have the power to extend it under section 61 of the QCAT Act. The court also concluded that section 47 of the QCAT Act gave the tribunal the discretion to dismiss or strike out a proceeding if it was frivolous, vexatious, or lacking in substance. In this case, the court exercised its discretion to strike out Dong's application to review the QBCC's decision.

The court dismissed Dong's application to review the QBCC's decision not to issue a DTR, and granted the application to strike out the proceeding under section 47 of the QCAT Act. The court held that the QBCC's decision not to apply for an extension of time under section 72A(4) was not reviewable, and that the time for issuing a DTR had expired. The court emphasised the importance of balancing the interests of builders and homeowners as set out in the QBCC Act.

Orders

Orders of the court

1. The application to dismiss or strike out a proceeding is granted.

2. The application to review the decision not to give a direction to rectify is dismissed, pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

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

Section 47 of the QCAT Act gives the tribunal the power to dismiss proceedings in certain circumstances. Section 47 provides, relevantly:(1) This section applies if the tribunal considers a proceeding or a part of a proceeding is:(a) frivolous, vexatious or misconceived; or(b) lacking in substance; or(c) otherwise an abuse of process.(2) The tribunal may:(a) if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or …Consideration The reviewable decision is the internal review decision not to issue a DTR. That decision took effect on 14 June 2023. For the purposes of this proceeding any decision by the tribunal on review would take effect from 14 June 2023, as opposed to the date of the tribunal decision.[3][3]QCAT Act, s 24(2)(b). Under s 72A(4) of the QBCC Act a DTR in relation to building work cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state. The building work to which the direction relates was completed on 9 September 2016.[4] This means that any DTR could only have been issued within 6 years and 6 months from 9 September 2016, that is, by 10 March 2023.[4]See the Applicant’s submissions, paragraph 2 It follows that the tribunal cannot make a decision to issue a direction to rectify. The time for issuing a DTR had already expired on 14 June 2023, the time from when the tribunal’s decision on review took effect. The Tribunal does not have the power to extend time to give a DTR unless an application has been made by the QBCC requesting the tribunal do so in accordance with s 72A(4). Here, no such application to extend time by the QBCC has been made. The QBCC's refusal to make an application to extend time in accordance with s 72A(4) is not justiciable as part of this review proceeding.[5] A decision to give or not give a DTR is reviewable.[6] However, a decision by the QBCC not to make an application to extend time to give a DTR is not. [5]Stephens v QBCC [2018] QCAT 281; Schauer v KJ & S O'Brien Contractor Pty Ltd [2019] QCAT 37 at [13] - [15].[6]QBCC Act, s 86 and s 87. Further, it is not possible to apply s 61 of the QCAT Act to extend time to give a DTR under s 72A(4).[7] This is because, although s 61 gives the tribunal a general power to extend a time limit imposed by an enabling Act, the timeframe imposed by s 72A(4) has been held to be a precondition to the exercise of the tribunal's jurisdiction. Provisions of that nature have been held to be substantive rather than procedural. Section 61 only applies to the latter. This conclusion, which gives primacy to the time limit imposed by s 72A(4), is consistent with the purposes of the QBCC Act which strives to achieve a balancing of interests between the builder and the homeowner as referred to in s 3 of the QBCC Act. [7]Doolan v QBCC [2017] QCAT 58. Section 47 of the QCAT Act requires the tribunal to exercise its discretion in determining whether to dismiss or strike out a proceeding.