Fotia v Queensland Building Services Authority

[2013] QCAT 160

CITATION:  Fotia v Queensland Building Services Authority [2013] QCAT 160

PARTIES:	Mr Antony Fotia (Applicant)
V
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER: GAR031-13

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Mr Richard Oliver, Senior Member

DELIVERED ON: 11 April 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application for an extension of time is dismissed.

2.    The application for review filed 3   December 2012 is dismissed.

CATCHWORDS:

Extension of Time – where applicant does not provide a satisfactory explanation or delay – where primary application lacks merit on the material filed – where respondent is prejudiced by the delay.

Queensland Civil and Administrative Tribunal Act 2009 s 33

Hunter Valley Developments v The Honourable Barry Cowen, Minister for Home Affairs and Environment (1984) 3FCR 344
McClintock v Queensland Building Services Authority [2010] QCATA 68

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

1. Mr Fotia made a complaint to the Queensland Building Services Authority about subsidence of his home at Waterhouse Road in Summerholm.  After a considerable investigation was undertaken by the Authority, it accepted Mr Fotia’s complaint or claim and approved a pay out under the Home Warranty Insurance Scheme in the sum of $59,022.15.  The payment was to cover the costs of undertaking remedial work around the foundation and footing system of the house to prevent further subsidence.  That decision was made on 10 February 2012.

2. Mr Fotia was not satisfied with the decision nor the evidence of the Authority’s experts and engaged his own expert engineer to investigate the problems with the foundations of the house.  On 29 February 2012 he received a report from STA Consulting Engineers. It was not until 3 December 2012 that Mr Fotia decided to apply to the Tribunal to review the Authority’s decision made in February of that year.

3. Section 33 of the QCAT Act says that any application to review a decision of the Authority must be made within 28 days of the date of the decision. Clearly Mr Fotia is out of time. To remedy that problem, he has filed an application to extend the time.

4. The reasons for the delay are touched upon in his application for an extension of time and relate to the obtaining of further advice from his engineer.  Mr Fotia does not say when that engineering advice was made available to him however, annexed to the review application is an email from Mark Nicholson, presumably an engineer, of ICPS Australia Pty Ltd.  That email simply says that the rectification could be achieved by “underpinning” and that there would not be any significant improvement in the differential floor levels by only adopting improvements to site drainage.  It does not state whether there has been a site inspection although it seems Mr Nicholson had regard to the reports provided to the Authority as well as the STA Consulting Report.  The email is of limited assistance. 

5. The Authority opposes the application for an extension of time and relies on the usual principles: that is an explanation for the delay; whether the applicant has some prospects of success in the primary application; whether there is any prejudice to the Authority and the fairness and reasonableness of any extension of time in the circumstances.[1]

   [1]        Hunter Valley Developments v The Honourable Barry Cowen, Minister for Home Affairs     and Environment (1984) 3 FCR 344 and McClintock v Queensland Building Services         Authority [2010] QCATA 68

6. Mr Fotia has not provided any explanation for the delay in the receipt of the STA Consulting Report and that email of Mr Nicholson.  He simply says that he was waiting on a further engineering report.  Mr Fotia has failed to address this important consideration in his application. 

7. As to the merits of the review application, the STA consulting report is consistent with the reports provided to the Authority by Bennatt Ground Technologies Pty Ltd. One can have no confidence that the opinions of Mr Nicholson, expressed in an email upon reviewing the reports already provide, would result in a  different decision by the Tribunal.

8. The Authority has finalised this claim and should now not be put in a position where it has to reopen the matter after a lengthy period.  Further, since the matter has been finalised, the house may have suffered further damage in the intervening period.  To this extent, the Authority is prejudiced by the delay.  Mr Fotia has not addressed any of the important issues that need to be addressed to justify a favourable exercise of discretion on this extension of time application.  Therefore the application must be dismissed.