Hammond v Queensland Building Services Authority

[2012] QCAT 404

CITATION: Hammond and Anor v Queensland Building Services Authority [2012] QCAT 404

PARTIES:	Paul Hammond Anita Hammond (Applicant)
v
Queensland Building Services Authority (Respondents)

APPLICATION NUMBER: GAR065-12

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Dr Bridget Cullen, Member

DELIVERED ON: 31 August 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave for an extension of time to file the application for review is granted.

CATCHWORDS:

Building and Construction – Application to review decisions of the Queensland Building Services Authority – application out of time – whether s 61 QCAT Act relief from procedural requirements able to be utilised – factors for consideration in grant of extension of time – extension granted

Queensland Civil and Administrative Tribunal Act2009, ss 32, 61

Cardillo v Queensland Building Services Authority [2011] QCAT 574

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

Application for an extension of time

1. Mr Paul Hammond and Mrs Anita Hammond (the Applicants) contracted with Inka Constructions Pty Ltd to perform building works on their property at Hilltop Terrace in Springfield Lakes.  Following completion of the building works, Mr and Mrs Hammond noticed movement at the property, and made a complaint to the Respondent, the Queensland Building Services Authority (QBSA).

2. The QBSA reviewed the complaint, and on 28 June 2011 declined to issue a direction to rectify to Inka Constructions, indicating it was the QBSA’s view that Inka Constructions was not responsible for any defects, citing the possibility that the actions of the owner led to the subsidence or settlement of the building (specifically, in the planting of trees near or adjacent to the building, and/or not maintaining site drainage).  The QBSA’s decision in this respect also precluded Mr and Mrs Hammond from coverage pursuant to the QBSA’s Home Warranty statutory insurance policy, and their claim was denied. 

3. Mr and Mrs Hammond maintain that Inka Constructions failed to install adequate drainage, causing the movement and cracking which has occurred since the works were completed.  They seek review of the QBSA’s decisions not to issue a direction to rectify and to reject their insurance claim. 

4. In order to proceed with their application for review, Mr and Mrs Hammond seek an extension of time pursuant to s 61 of the Queensland Civil and Administrative Tribunal Act 2009, as they have brought their application beyond the 28 day period allowed for pursuant to s 33(3) of the QCAT Act. It is this application that I must make a decision with respect to.

Application for an extension of time

1. It is not in dispute that QCAT has jurisdiction to review the decisions of the QBSA in this matter, provided that an extension of time is obtained by Mr and Mrs Hammond. 

2. The time limit imposed by the QCAT Act in relation to a review of this nature is 28 days from the ‘relevant day’[1] – that is, from when Mr and Mrs Hammond were notified of the QBSA’s decision. Mr and Mrs Hammond admit that this date is 30 June 2011. Section 61 allows the Tribunal to “extend a time limit fixed for the start of a proceeding by this Act or an enabling Act.”

   [1]        Queensland Civil and Administrative Tribunal Act2009, s 33(3) and (4)(a).

3. Mr and Mrs Hammond commenced their substantive application in this matter on 13 March 2012, approximately 7 ½ months beyond the 28 day window of time contemplated.

4. In deciding whether to exercise the discretion required to grant Mr and Mrs Hammond an extension of time, it is helpful to refer to the principles set out by Member Howe in his decision in Cardillo v Queensland Building Services Authority [2011] QCAT 574, namely:

   (a)Whether an acceptable explanation for the delay has been given;

   (b)The strength of the applicant’s case if allowed to proceed;

   (c)Whether other parties will be prejudiced;

   (d)The length of the delay; and

   (e)Whether it is in the interests of justice to grant the extension; that is, whether it would be fair and equitable in the circumstances.

Acceptable explanation for the delay and its length

1. The applicant bears the onus of providing the court, or in these circumstances, the Tribunal, with an acceptable explanation for the delay and adequate reason to accept the application for an extension.[2]

   [2]Hunter Valley Developments Pty Ltd and Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305.

2. Here, Mr and Mrs Hammond submit that immediately following the QBSA’s decision, they engaged in communication and negotiation with Mr Ian Jennings, the QBSA’s General Manager.  On 22 August 2011, Mr Jennings and Mr Les Brain (the then Manager of the QBSA’s Dispute Resolution Services division) attended the property to inspect the defects.  Mr and Mrs Hammond submit that following its 28 June decision, the QBSA engaged in further discussions with Inka Constructions as well as a subsequent builder engaged by Mr and Mrs Hammond, and on 17 October 2011, wrote to Mr and Mrs Hammond confirming that a reassessment of their complaint had been undertaken and led to the same result.

3. Following this time, Mr and Mrs Hammond say that they continued to engage in discussions with the QBSA, providing additional evidence and materials evidencing the extent and responsibility of Inka Constructions in relation to the defects.

4. On 19 December 2011, the QBSA again confirmed that its 28 June decision would stand.  Thereafter, in early 2012, Mr and Mrs Hammond sought independent engineering advice as to the cause of the movement of the property.  They say that they submitted the application for review after they were unable to re-engage the QBSA in negotiations, and following their recent legal advice in relation to the matter.

5. I am satisfied that the extensive efforts and communications between the parties would have left Mr and Mrs Hammond with a reasonable belief that the 28 June 2011 decision was not necessarily final, or that minimally, following the termination of negotiations between the parties, the QBSA would not oppose an extension of the otherwise applicable extension of time.

6. The QBSA contends that Mr and Mrs Hammond’s explanation fails to explain the delay between 19 December 2011 and 13 March 2012, when the application was ultimately filed.  In her affidavit filed in support of the application for an extension of time, Mrs Hammond notes that she and her husband were overseas from 30 November 2011 until 12 January 2012. Upon return, they consulted an architect for advice, engaged a consulting engineer to conduct a site inspection, and ultimately obtained legal advice on 23 February 2012.  Following receipt of this advice, an application was made shortly thereafter.

7. I consider that Mr and Mrs Hammond have adequately explained the delay and length thereof in the making of their application to review.

The strength and merits of the case

1. Mr and Mrs Hammond have noted that the engineering advice obtained to date has produced conflicting opinions as to the cause of the movement on the property.  They indicate an intention to engage an independent engineer to conduct an invasive inspection of their property, in an effort to make sense of the conflicting advice.

2. As the engineers’ reports have led to some element of doubt surrounding the decision of the BSA, it is not possible to conclude that the application lacks merit.  Rather, it appears that there are sufficient matters before the Tribunal warranting consideration and determination, such that it is conceivable that the Tribunal could reach a different decision from that made by the QBSA.

Prejudice

1. There does not, in my view, appear to be any genuine prejudice to the QBSA if the Tribunal was to grant an extension of time in order for Mr and Mrs Hammond’s review application to proceed.

2. Any prejudice to Inka Constructions would be outweighed by both its own right of review, and by potential prejudice to Mr and Mrs Hammond that would result in refusing to grant an extension, and in denying them the natural justice afforded by a hearing process that will result in a set of reasons, which may enhance their understanding of the circumstances they find themselves facing.

3. I am satisfied that there is no adverse prejudice in these circumstances to either the QBSA or Inka Constructions.

The Interests of Justice – Fair and Equitable

1. Mr and Mrs Hammond submit that they would suffer substantial emotional and financial hardship should their application for an extension of time be denied.  They would incur potentially significant legal expenses in bringing proceedings directly against Inka Constructions. 

The extension of time is warranted in the circumstances

1. It is my view that Mr and Mrs Hammond should be allowed the opportunity to review the QBSA’s decisions with regard to the works performed by Inka Constructions, and that the interests of justice favour the granting of this application.  It is also my belief that allowing the review to proceed may ultimately have the benefit of conserving the resources of the parties, and the Tribunal, as a full ventilation of the facts in this matter may prevent further litigation amongst those involved in this matter.

2. In the circumstances, leave for the extension of time sought by Mr and Mrs Hammond is granted.