Fox v Queensland Building and Construction Commission
[2014] QCAT 555
•6 November 2014
| CITATION: | Fox v Queensland Building and Construction Commission [2014] QCAT 555 |
| PARTIES: | Christine Fox (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR081-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 8 August 2014 |
| HEARD AT: | Townsville |
| DECISION OF: | Member Johnston |
| DELIVERED ON: | 6 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Application is dismissed. |
| CATCHWORDS: | Complaint in relation to defective building work out of time – six year, three month time limit Queensland Building and Construction Commission Act 1991 s 72(8) |
APPEARANCES:
| APPLICANT: | Ms Christine Fox was self represented |
| RESPONDENT: | Ms Lorna Taylor in-house lawyer represented the Queensland Building and Construction Commission |
REASONS FOR DECISION
Background
Christine Fox owns a property situated at 5 Badelona, Street Cranbrook, Townsville.
Ms Fox had engaged a builder Mr David Emanuel to carry out renovations in 2000.
Ms Fox lodged a complaint with the Queensland Building Services Authority (referred to as the Authority) (now known as the Queensland Building and Construction Commission) in 2005 regarding defective work at her premises. The Authority issued a Direction to Rectify to Mr Emanuel on 30 June 2005.
Mr Emanuel did not comply with the Direction and the matter was referred to the Authority’s Insurance Division. The Authority issued a Scope of Works for the rectification of the defects and Mr Ray Gibson was contracted to complete the rectification work.
Mr Gibson completed the Scope of Works and sent a bill to the Authority on 6 June 2006. In the Authority’s ordinary course of dealing a rectifying builder may only submit an invoice for payment upon completion of the rectification work.
The Queensland Building and Construction Commission Act 1991 (“the Act”) provides at section 72(8) that the Authority (or for that read “the Commission”) cannot issue a Direction to Rectify building work that was completed more than six years and three months earlier.
This section gave Ms Fox until 6 September 2012 to make a complaint to the Authority about defective work undertaken by Mr Gibson.
On 26 September 2012, Ms Fox made a complaint to the Authority stating that she was unhappy with the work that Mr Gibson had undertaken. On 10 October 2012, she notified Mr Gibson that she was not happy with the work that he had undertaken.
On 18 December 2012, the Authority wrote to Ms Fox in relation to her complaint stating that the Authority could not issue a Direction to Rectify as more than six years and three months had passed since the work the subject of the complaint had been completed. The Authority referred to the work of Mr David Emanuel in the letter.
Ms Fox contends that Mr Gibson had responsibility for rectifying the defects of Mr Emanuel and that the complaint is about the work that Mr Gibson did under the Scope of Works.
The Tribunal is of the view having looked at the Scope of Works and heard the evidence in relation to the defect that Ms Fox is probably right in saying that her complaint is about the work that Mr Gibson undertook.
The problem for Ms Fox is that even this work was completed over six years and three months prior to her complaint.
Application of the law – how does this affect Ms Fox's application
The Tribunal in administrative reviews stands in the shoes of the decision maker and is bound by the same legislative framework that binds the decision maker. The issue for the Tribunal is that even if it accepts that Mr Gibson was responsible for the defective building work the time limitation imposed by section 72(8) of the Act also applies to Mr Gibson's work. Ms Fox made her complaint to the Authority on 26 September 2012, which was outside six years and three months since the work had been completed. Her complaint is accordingly out of time.
The Act provides that the Authority and only the Authority can extend the period in which a complaint can be made. The Commission has declined to bring an application to extend the time limit for bringing of the claim. This is a right given exclusively to the Commission. This means that Ms Fox's complaint is out of time and it is beyond the power of the Tribunal to grant the relief that she has claimed in her Application. The only order that the Tribunal can make in these circumstances is to dismiss the Application.
Ms Fox in her submissions complains that the Authority could have raised this issue at the start. The Authority when it responded to her complaint on 18 December 2012 raised the issue of time limits. Even if the Authority made a mistake in terms of which builder was responsible for the defective work the Authority was putting the complainant on notice that it could not accept a claim that was out of time.
The Queensland Parliament has determined the time limit in the legislation. There must be a point in time at which a builder is not responsible for defects. The evidence presented by Ms Fox is that she continued to have problems with water penetration in the period after Mr Gibson had undertaken the work. She had engaged several experts to provide her with their advice in relation to the source of the water penetration. Unfortunately she has left bringing her complaint until outside the time limit.
The Tribunal is willing help litigants especially self-represented parties conduct their cases but there is an onus on parties and expectation that they will be properly prepared before they issue proceeding. This requires parties to have some understanding of the time limits involved in bringing complaints. The Authority would normally draw limitations to the attention of an applicant. However, the way in which the Authority conducted its case meant that it only turned its mind to the time limit in relation to Mr Gibson at a late point in the proceedings.
The Tribunal has no choice but to dismiss the Application. The Tribunal is of the view in circumstances of this matter that it is appropriate to make no orders in terms of costs.
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