GDS Building Services Pty Ltd t/a Zen Roofing v QBCC

[2024] QCAT 510

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

GDS Building Services Pty Ltd t/a Zen Roofing v QBCC [2024] QCAT 510

PARTIES:

GDS BUILDING SERVICES PTY LTD TRADING AS ZEN ROOFING

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

GAR233-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

18 November 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Chapple

ORDERS:

1.     The Application to extend or shorten a time limit or for waiver of compliance with procedural requirement filed 8 October 2024 is dismissed.

2.     Application for miscellaneous matters filed 9 October 2024 is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – absence of jurisdiction – application dismissed on the basis that misconceived
Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 86, s 86C, s 86F, s 87

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 47

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

1. On 7 June 2022, the applicant (‘Zen Roofing’) filed in the Tribunal an Application to review an internal review decision by the respondent (‘QBCC’) dated 20 May 2022 to give a direction to rectify to Zen Roofing under s 72 of the Queensland Building and Construction Commission Act1991 (Qld) (‘the QBCC Act’), such application bearing case number GAR233-22 (‘the Review Application’).

2. The Tribunal heard the Review Application on 3 October 2024 and reserved its decision.

3. On 8 October 2024, Zen Roofing filed in the Tribunal an Application to extend or shorten a time limit or for waiver of compliance with procedural requirement, seeking an order that “the time limit for applying for a review of a QBCC’s [sic] decision be waived” (‘the Extension of Time Application’) and stating the following reasons:

   We filed an application with QCAT on 7 June 2022 to have the QBCC’s decision to issue a direction to rectify (DTR) reviewed. About 6 months later on 6 January 2023 the QBCC made a decision to accept a claim made by the homeowner under the home warranty insurance scheme for the alleged defects that were under dispute and pending the QCAT’s review. We assumed this decision will be automatically included in the review process by the QCAT as a result of our original application therefore did not realize we need to make a separate application for this decision to be review until now.

4. On 9 October 2024, Zen Roofing filed in the Tribunal an Application for miscellaneous matters (‘the Miscellaneous Matters Application’), seeking the following directions:

   1. The QBCC withdraw its ‘Work not Fixed or Completed’ Direction no. 0109320 issued on 5 Aug 2022.

   2. The QBCC withdraw its decision to accept a claim from the homeowner under the home warranty scheme – refer to the attached letters from the QBCC dated 6 January 2023 and 11 June 2024.

   3. The QBCC withdraw the attached infringement for failure to comply with directions to rectify or remedy issued to the Applicant on 27 October 2023 (infringe notice no.26619),

   and stating the following reasons:

   Our original application for having the DTR reviewed by the QCAT was filed on 7 June 2022. Based upon the submissions we have made for our original application, we maintain that all the defect items alleged by the QBCC are either not defective or have been rectified by the Applicant. Therefore the ‘Work not Fixed or Completed’ decision must be set aside. Similarly the home warranty insurance claim must also be rejected because there is no practical utility for the claim. For the same reason, the attached infringement for failure to comply with direction to rectifier [sic] or remedy (notice no.26619) must also be withdrawn.

5. The review jurisdiction of the Tribunal is triggered where there is a reviewable decision, the review of which the applicant seeks by application to review.[1]

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18.

6. Section 87 of the QBCC Act provides that a person affected by a reviewable decision of the Commission may apply, as provided under the Queensland Civil and Administrative Tribunal Act2009 (Qld) (‘the QCAT Act’), to the Tribunal for a review of the decision. For these purposes, a reviewable decision is a decision listed in section 86 of the QBCC Act and an internal review decision as defined by section 86C of the QBCC Act. Section 86F of the QBCC Act lists decisions that are not reviewable decisions.

7. The Extension of Time Application refers to a decision by the QBCC to accept a claim under the statutory insurance scheme. If this is an accurate characterisation of the decision Zen Roofing is seeking to have reviewed by the Tribunal, I consider it is likely the decision is not a reviewable decision as provided by the QBCC Act. I consider however that I am not required to determine this issue as I am satisfied there is no application to review before the Tribunal in relation to this decision, and the Tribunal has no jurisdiction.

8. I consider that the Extension of Time Application is misconceived. Accordingly, the Extension of Time Application will be dismissed pursuant to section 47(2)(a) of the QCAT Act.

9. The Miscellaneous Matters Application appears to refer (in paragraph 2; and provides a copy of) to the same decision to which the Extension of Time Application refers, and to that extent, I reiterate my conclusions set out in paragraphs [7] and [8] of this decision record.

10. The Miscellaneous Matters Application also refers (in paragraph 1; and provides a copy of) to a QBCC ‘Work not Fixed or Completed’ Direction no. 0109320 issued on 5 August 2022. While I consider the decision may be a reviewable decision as provided by the QBCC Act, I am not required to determine this issue as I am satisfied there is no application to review before the Tribunal in relation to this decision, and the Tribunal has no jurisdiction.

11. The Miscellaneous Matters Application also refers (in paragraph 3; and provides a copy of) to a QBCC infringement notice issued on 27 October 2022. While I consider it is likely the infringement notice is not a reviewable decision as provided by the QBCC Act, I am not required to determine this issue as I am satisfied there is no application to review before the Tribunal in relation to the infringement notice, and the Tribunal has no jurisdiction.

12. I consider that the Miscellaneous Matters Application is misconceived. Accordingly, the Miscellaneous Matters Application will be dismissed pursuant to section 47(2)(a) of the QCAT Act.