Doyle v Queensland Building Services Authority
[2011] QCAT 24
•19 January 2011
| CITATION: | Doyle v Queensland Building Services Authority [2011] QCAT 24 |
| PARTIES: | Mr Phillip John Doyle (Applicant/Appellant) |
| v | |
| Queensland Building Services Authority (Respondent) |
APPLICATION NUMBER: GAR052-10
| MATTER TYPE: | General Administrative Review |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member |
DELIVERED ON: 19 January 2011
DELIVERED AT: Brisbane
ORDERS MADE: That the application filed on 18 February 2010 be struck out
| CATCHWORDS : | Application to review a decision of the respondent; where no decision is identified in the application; where no decision capable of review; whether the respondent should have issued a direction to rectify to the applicant; whether failure to issue a direction to rectify pursuant to section 72 of the Queensland Building Services Authority Act a decision. Queensland Building Services Authority Act ss71, 72, 86 considered. |
APPEARANCES and REPRESENTATION (if any):
Mr Phillip John Doyle was represented by Mr Justin Geddes, solicitor
Queensland Building Services Authority was represented by Mr Malcolm Robinson, solicitor of Forbes Dowling
REASONS FOR DECISION
Mr Doyle was a director of Topline Home Improvements Pty Ltd (“Topline”) and is also a registered builder. Topline carried on business as a building company and had been involved in a number of building projects in particular, those to which these proceedings relate being:-
(a) 32 Brindisi Avenue, Isle of Capri
(b) Unit 1/22 Annoula Avenue, Biggera Waters
(c) Unit 2/22 Annoula Avenue, Biggera Waters
(d) Unit 1/38 Baggelas Crescent, Biggera Waters;
“The properties”
In respect of the construction of each of the properties, the Queensland Building Services Authority (“the Authority”) issued a certificate of insurance naming the contractor as “Topline Home Improvements Pty Ltd”. The certificates of insurance were issued in 2007[1].
[1] For details of the complaints and the details of the properties refer to paragraph 4 of the affidavit of Robert James Greely
Between February 2009 and November 2009, the owners of the properties lodged complaints with the Authority concerning defective building work carried out by Topline at the properties.
On 23 January 2009 liquidators, Worrels, were appointed to Topline and it ceased trading.
Upon investigation of the various complaints made, the Authority, in June and July 2009 gave to Worrels a Notice of Potential Debt. Enclosed with the Notice of Potential Debt was a scope of works. The Authority at all times addressed all communications about the defective work to Topline through Worrells.
Rectification work was carried out under the statutory insurance scheme and when completed, the Authority issued to Mr Doyle, a show cause notice as to why Mr Doyle’s licence should not be cancelled or suspended for non payment of the monies paid out under the insurance scheme in the sum of $30,710.00. In a letter from the Authority to Mr Doyle on 19 November 2009 which, appears to be the first correspondence received by him, the Authority gave notice of their intention to seek recovery of the monies paid out under the insurance scheme pursuant to section 71 of the Queensland Building Services Authority Act (“QBSA Act”).
As a consequence of receiving that letter, Mr Doyle filed an Application to Review a Decision in QCAT on 17 February 2010. The decision sought to be reviewed is one which, it is alleged, was made between 20 May 2009 and 19 November 2009. In part C of the application, Mr Doyle states this:-
“I seek a review of the Authority’s decision to approve the claim under the Statutory Insurance Scheme for claim 3-941-09 unit 2/38 Vaggelas Crescent, Biggera Waters (letter dated 19 November 2009) when the applicant did not receive the “Scope of Works” from either the Authority or Worrells (liquidator).
Also the Building Services Authority (the Authority) also approved claims without sending the applicant the “Scope of Works” for rectification items to be assessed under the Statutory Insurance Scheme for the following addresses…”
The relief sought in the application is that the Tribunal review the Scope of Works for the properties.
On being served with the application, the Authority filed an application to strike out the Application to Review principally on the grounds that the applicant has not identified any decision capable of review.
Both parties have filed submissions in respect of the strike out application and that is now to be determined as a preliminary issue.
The Applicant’s submissions
Mr Doyle’s submissions are straight forward. He contends that had the Authority kept him informed of the complaints and the steps taken to rectify the defective building work, he would have been able to attend to that rectification work himself because, as the nominee for the company, he was always going to be responsible to reimburse the insurance fund if monies were paid out. The reasons he set out are quite succinct and they are:-
(a) That at no time did the BSA call upon the Applicant as the nominee of Topline to rectify the defective works no give him any notice, before the BSA engaged other contractors to do this under the statutory scheme;
(b) These were works for which the Applicant pursuant to s72(5)(h) of the Queensland Building Services Authority Act as a nominee was personally responsible as though they were his own works;
(c) For more than 10 years both the Applicant and the Company (prior the company going into liquidation)held licences with the BSA and there had never been a complain as to defective workmanship against either of these that resulted in any claim against the BSA;
(d) Had the BSA (by virtue of para (c) above) given the opportunity to the Applicant to remedy these defects, the BSA would not have been worse off;
(e) The BSA therefore would have only had rectify any defective works pursuant to the statutory scheme had the Applicant failed to do to;
(f) Of what the Applicant now knows about the remedial work it could have been done properly and effectively by the Applicant at minimal cost.
What the applicant then goes on to submit is that the Authority did not give him an opportunity pursuant to section 72(1) of the QBSA Act, that is to issue to him a direction to rectify which is a reviewable decision. He contends that a direction to rectify ought to have issued to him by reason of section 72(1) and section (5)(h) of the QBSA Act which provide:-
72 Power to require rectification of building work
(1) If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction.
(5) For subsection (1), the person who carried out the building work is taken to include—
(h)a person who was the nominee for a licensed contractor that is a company, for work carried out by the company while the person was the company’s nominee.
It is not in contest that Mr Doyle was the nominee for Topline. Furthermore, Mr Greely of the Authority swears that:-
“I’m informed by Darren Philip that, and I very believe that, no directions to rectify were forwarded to Topline Home Improvements Pty Ltd in respect of the complaints exhibited to this affidavit as Topline Home Improvements Pty Ltd was, at all material times to these complaints, in liquidation and, therefore, unable to perform rectification work of any description.”
However, Mr Doyle was in a position to carry out rectification work and for the purposes of this application, I accept that at all material times he would have been ready, willing and able to undertake rectification work had he been directed to do so.
For some strange reason, the Authority did not, as I’ve indicated, engage with Mr Doyle by correspondence or request meetings on site with home owners, as is the usual practice, or direct him to carry out rectification work.
Mr Doyle does have a valid cause for complaint because the Authority’s insurance division, at the time it approved the claim, would have been aware of its recovery rights pursuant to section 71 of the QBSA Act which provides:-
“If the authority makes any payment on a claim under the insurance scheme, the authority may recover the amount of
the payment, as a debt, from the building contractor by whom
the relevant residential construction work was, or was to be,
carried out or any other person through whose fault the claim arose.”
In a strange twist, the Authority contends that Mr Doyle was not a person to whom a direction to rectify could issue but, by reason of section 72(5)(h) he is the person who is deemed to have carried out the residential construction work for the purposes of section 71.
The Respondents submissions.
The Authority, in its written submissions challenges Mr Doyle’s rights of review. It relies on section 86 of the QBSA Act which gives limited rights of review, in particular, a subsection 2 which provides:-
(2)The Tribunal must not review the following decisions of the Authority:-
(b)a decision to direct rectification or completion of tribunal work by a building contractor and any finding by the authority in arriving at the decision if—
(i) 28 days have elapsed from the date the direction to rectify or complete was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision; and
(c) a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work 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.
The Authority contends that by reason of section 86(2) the applicant is out of time there is no right of review.
Equally, the contention that the Authority’s decision not to forward a copy of the scopes of work to the applicant is not a decision capable of review under section 86(1)(g).
The Authority also contends that it was under no obligation to issue a Direction to Rectify to the applicant despite Mr Doyle’s submission that he falls within subsection (5)(d) and (5)(e). Those sections provide:-
“(d) A person who, for profit or reward, carried out the building work; and
(e) A person who, under the domestic building contracts Act 2000, is a building contractor under domestic building contract who managed the carrying out of the building work;”
Although I have some reservations about whether or not subsection (d) will apply to Mr Doyle, clearly, subsection (e) would apply because he was the nominee builder, was the person in charge of the building works both as a director of Topline, and a person who is the licensed builder.
The Authority’s argument to avoid the application of subsection (h) is also interesting. It contends that as the company was in liquidation at the date the scope of works issued, Mr Doyle could not be said to be a nominee for a licensed contractor that is a company. Irrespective of whether the company was trading or not, as a person responsible for the building work, and as a nominee the combination of section 72(1) and (5) empower the Authority to issue a direction to rectify to Mr Doyle. It is somewhat disingenuous to argue that Mr Doyle is not a person to whom a direction to rectify could issue when, his status, for the purposes of section 71, is a person from whom the Authority can recover, as a debt, an amount paid under the scheme from the building contractor by whom the relevant residential construction work was, or was to be, carried out or any other person through whose fault the claim arose, that is here, the director, nominee and licensed builder.
Discussion
There is no doubt in my mind that Mr Doyle is a person who is effected by a reviewable decision of the Authority but the difficulty here, for Mr Doyle is that there is no decision of the Authority which he can review.
I accept the submissions of the Authority that the decisions he nominates for review are out of time pursuant to section 86(2) and as a consequence this application can not succeed.
As I indicated in the hearing, when the complaints were filed, and the processes began which the Authority knew would ultimately result in an insurance payout it did, in my view, behove the Authority to keep Mr Doyle informed of the various steps that were being taken against Topline. There could be no reasonable expectation on the part of the Authority that a large firm of accountants like Worrells who were appointed the liquidators would pass on the correspondence to Mr Doyle. The Authority knew, at the very beginning that it would be seeking recovery from Mr Doyle pursuant to section 71 and therefore, there was, if not a legal obligation, at least a moral obligation to keep him informed.
The Authority asks for costs. I see no basis pursuant to section 100 why costs should be awarded in this instance.
Therefore, the Tribunal’s decision is that the application filed on the 17 February 2010 is struck out.
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