Evans v Queensland Building Services Authority

[2011] QCAT 543

CITATION: Evans v Queensland Building Services Authority [2011] QCAT 543

PARTIES:	Ms Kathryn Marie Evans
v
Queensland Building Services Authority

APPLICATION NUMBER:   GAR393-10  

MATTER TYPE: General administrative review matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Kate Buxton, Member

DELIVERED ON: 10 November 2011

DELIVERED AT:      Brisbane

ORDERS MADE: 1. Application for review filed 1 December 2010 is struck out on that basis that it is misconceived and that it is lacking in substance.

CATCHWORDS:

Application to strike out – direction to rectify having issued – Subsequent direction to rectify – unfairness

Queensland Building Services Authority Act 1991, ss 72, 72(14)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. By application filed 14 July 2011 the respondent, the Queensland Building Services Authority (“QBSA”), has sought to have these proceedings dismissed or struck out on the basis that:

a)The application for review does not identify a reviewable decision; and/or

b)The applicant is out of time to review any decisions and the Tribunal should not extend time; and/or

c)There are no prospects of success in the application for review.

1. Section 47 of the QCAT Act provides for dismissal or striking out of a proceeding which is:

a)Frivolous, vexatious or misconceived; or

b)Lacking in substance; or

c)Otherwise an abuse of process.

1. In my view, there are compelling grounds to dismiss the application both because it is misconceived and because it is lacking in substance.

1. The building work relevant to this application was undertaken in 2001 by Ron Taylor Pty Ltd.  The material discloses that the completion date for that work was 4 May 2001.

1. The QBSA issued a direction to rectify on 4 August 2010 and this application to review was lodged on 1 December 2010.

1. The material discloses that the applicant also seeks to review what she nominates as two further decisions of the respondent, in 2005 and on 29 February 2008.  In each case, the applicant states that the QBSA’s decision in relation to whether or not to issue a direction to rectify ought be reviewed.  In her application, the applicant also asserts a claim, as against the QBSA:

a)Losses associated with pursuing her claim; and

b)Rectification of the works (which are referred to and identified in annexure A to the application).

1. Annexure A to the application is an estimate from R & T Constructions Pty Ltd, dated 23 October 2010, of the works involved and cost to rectify works which the applicant alleges were improperly carried out by the original builder.

1. The most recent QBSA decision under review, of 4 August 2010, is in fact a direction to rectify those works.  It is difficult to see how, in circumstances where the QBSA has issued a direction to rectify, in favour of the applicant, that decision could be further reviewed in a way that would provide any substantive relief to the applicant.  The same can be said of the decision which the applicant nominates as having taken place in 2005 (which appears, from the material, to be a decision made by the QBSA on 7 May 2004 issuing an earlier direction to rectify) and the decision on 29 February 2008 refusing to issue a direction.  In circumstances where the QBSA subsequently issued the direction to rectify on 4 August 2010 it is difficult to determine how the applicant could receive any substantive relief in relation to the application to review the refusal to issue a direction to rectify on 29 February 2008.

1. In addition to the lack of utility or substance in the application itself, it is plain that there is an issue of substantial unfairness in relation to these original building works which were completed in excess of ten years ago.  The direction to rectify on 4 August 2010 effectively supersedes the two earlier decisions mentioned in the application for review.  In any event, those decisions are well out of time to be reviewed and no justification has been included in the material which would satisfy the Tribunal that it is appropriate to extend time in relation to those decisions.  As to the decision made on 4 August 2010 again, that is a decision in favour of the applicant, and therefore not properly the subject of review.  The application to review that decision is also out of time and is not supported by any adequate basis upon which time ought be extended.

[10]  In its submissions dated 13 October 2011 the QBSA asserts the following additional points:

1. The Authority has no power under section 72 of the QBSA Act to issue a direction to rectify in circumstances where either they have already issued a direction to rectify which has been complied with or there are no longer any defective works at the property which could give rise to the issue of a direction to rectify.

1. It would be unfair to the builder under section 72(14) of the QBSA Act to issue a further direction to rectify in the circumstances.

[11] In addition to the matters I have outlined above I accede to the submissions of the QBSA in this regard. The power under section 72 is now exhausted in terms of the issuing of directions in respect of the subject works. As to the second point, it appears from her submission to the Tribunal dated 7 August 2011 that the applicant herself has caused work to be performed at the property. The applicant stated, “I have employed a builder to rectify the damage at substantial cost”. No further direction can therefore issue in the circumstances where the applicant has now taken matters into her own hands.

[12]  It is therefore appropriate to strike out the application for review.  It is appropriate to make no order as to costs.

Order

1. Application for review filed 1 December 2010 is struck out on that basis that it is misconceived and that it is lacking in substance.