Elliott v Queensland Building Services Authority

CITATION: Elliott v Queensland Building Services Authority [2010] QCAT 180

PARTIES:	Mr Robert Arthur Elliott
v
Queensland Building Services Authority

APPLICATION NUMBER:   GAR124-10  

MATTER TYPE: Building matters

HEARING DATE:     On the papers

HEARD AT:  BRISBANE

DECISION OF: K O’Callaghan – Senior Member

DELIVERED ON: 29 April 2010

DELIVERED AT:      BRISBANE

ORDERS MADE: 1.    The application for stay is dismissed.

CATCHWORDS :  Application for stay
Section 22 – Queensland Civil and Administrative Act 2009

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

Reasons

The Application

1. The applicant lodged an application to review a decision of the Queensland Building Services Authority (QBSA) to direct rectification of sub-floor drainage under the ensuite floor of a property at 2 Macaranga Court, Laidley.  The applicant says the decision was made on 6 April 2010.  He attaches a letter from the QBSA of that date however the letter refers to a direction to rectify made 22 March 2010 and is an advice that the direction has not been complied with and notification that the QBSA is investigating the claim and preparing a scope of works which could be the subject of a review.  In any event the applicant also sought a stay of the decision.

The Issues and the legislation

1. Section 22 of the Queensland Civil and Administrative Tribunal Act2009 (“The Act”) relevantly provides that:

(3)The Tribunal may on application of a party, make an order staying the operation of a reviewable decision if a proceeding for the review of the decision has started under this Act.

(4)The Tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following:

(a)   the interests of any person whose interests may be affected by the making of the order or the order not being made;

(b)   any submission made to the tribunal by the decision-maker for the reviewable decision;

(c)   the public interest.

1. The issue therefore for the Tribunal is whether it is desirable to stay the QBSA’s decision having regard to the matters referred to subsections (a) and (b) and (c).

Submissions

1. The applicant in his application states he is seeking the stay because “there is an identical case before the Tribunal at present (in the same house) case number QR146-09.”

1. He provides no submissions in support with his application.  QR146-09 deals with a direction to rectify issued with respect to a number of leaks in the house including leaks in subsurface drains in the vicinity of the bath waste in the main bathroom.  This application is being heard with two (2) other review applications relating to the same property. 

1. The QBSA opposes the application for stay and has provided written submissions in support of their opposition.

1. They point out that the Tribunal in making a stay order does not have an unfettered discretion and is required to form a positive view that the order is “desirable”. They submit that “desirable” in the context of section 22 of the Act denotes a positive aspiration or…