Fotia v Queensland Building Services Authority

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…