JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority

[2013] QCAT 216

CITATION: JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 216

PARTIES:	JM Kelly (Project Builders) Pty Ltd (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER: GAR007-11 and GAR183-11

MATTER TYPE: General administrative review matters

HEARING DATE: 13 May 2013

HEARD AT: Brisbane

DECISION OF: Paul Favell, Member

DELIVERED ON: 14 May 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Application for Adjournment refused.

CATCHWORDS: Application for an adjournment at commencement of hearing – Supreme Court declaration that directions to rectify void – whether declaration required the hearing to be adjourned.

APPEARANCES and REPRESENTATION (if any):

APPLICANT: JM Kelly (Project Builders) Pty Ltd represented by Mr T Sullivan S.C. of instructed by Cooper Grace Ward Lawyers.

RESPONDENT: Queensland Building Services Authority represented by Mr Turnbull.

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. Group Kildey Pty Ltd is the developer of a block of units at Woody Point. The units had been started by another builder, which went into liquidation. Group Kildey engaged J M Kelly (Project Builders) Pty Ltd as project manager to finish the units.

2. The Queensland Building Services Authority has issued four directions to rectify. The directions mainly concern water penetration to various units and the basement garage.

3. Two of the directions were issued to J M Kelly on 17 December 2010 (DTR 35691) and 17 June 2011 (DTR 36338).

4. J M Kelly has applied to the Queensland Civil and Administrative Tribunal to review the decision of the Authority to issue the directions to rectify.

5. The hearing of those applications together with applications made by Group Kildey was to commence on 13 April 2013. Before the hearing commenced, J M Kelly applied to have the hearing adjourned.

6. The application was made after the Supreme Court on 9 May 2013 declared “the directions to rectify and/or complete numbered 35691 and 36338 issued by [the authority] are void.”

7. I do not have the reasons for that declaration.

8. I have however been informed that the reasoning followed the reasoning in McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QSC 057. The decision declared various directions to rectify void because they did not comply with the requirement of s 72(3) of the Queensland Building Services Authority (‘QBSA’) Act 1991 (Qld) for the person who carried out the building work to be given at least 28 days to rectify the building work.

9. Mr Sullivan SC on behalf of the applicant sought to have this hearing adjourned to allow for the period to appeal against the decision to declare the direction void to pass and if the decision was appealed to allow time for the appeal to be determined.

10. There would, in my view, only be utility in acceding to such a request if the validity of the declaration would affect this review.

11. J M Kelly argued that the Authority cannot issue any fresh direction because of the prescribed time limit contained in section 72(8) of the QBSA Act. It submits that “this Tribunal on a review decision could not make a decision to issue a direction to rectify because section 72(8) prohibits that direction to be made outside of the time prescribed.”

12. I was told, “Ultimately, it will be submitted that the Tribunal ought to set aside the prior decisions which are the subject of review because they were decisions in support of void directions, and for the reasons explained there cannot have been a valid direction.”

13. The authority applied for an order under section 72(8) of the QBSA Act to allow it to issue a direction to rectify to JM Kelly on the basis that JM Kelly was granted leave to withdraw its proceedings. There was no application to withdraw the JM Kelly proceedings and the application by the Authority did not proceed further.

14. The authority opposed the adjournment and submitted that the decision which QCAT is to make is different to the decision made by the Supreme Court. QCAT is reviewing the decision of the Authority to issue a direction and not the validity of the direction given.

15. Section 9 of the QCAT Act provides:

    9    Jurisdiction generally

    (1)This Tribunal has jurisdiction to deal with matters it is empowered to deal with under this Act or an enabling Act.

    (2)Jurisdiction conferred on the Tribunal is -

    (a)…

    (b)review jurisdiction

    (c)…

16. Section 17 of the QCAT Act provides:

    17 Generally

    (1)  The Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.

    (2)  For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision.

    (underlining added)

17. Section 20 of the QCAT Act provides:

    20 Review involves fresh hearing

    (1)  The purpose of the review of a reviewable decision is to produce the correct and preferable decision.

    (2)  The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.

18. Section 24 of the QCAT Act provides:

    24. Functions for review jurisdiction

    (1)  In a proceeding for a review of a reviewable decision the Tribunal may-

    (a)Confirm or amend the decision; or

    (b)Set aside the decision and substitute its own decision; or

    (c)Set aside the decision and return the matter for the reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.

19. Section 86 of the QBSA provides, referring to QCAT:

    86. Reviewable decisions

    (1)  The Tribunal may review the following decisions of the authority –

    …

    (e) a decision to direct or not to direct rectification or completion of Tribunal work;

20. It is apparent from the legislation set out above that the relevant QCAT jurisdiction is to review the decision of the respondent to direct rectification. As said by Dalton J in McNab Constructions Pty Ltd v Queensland Building Services Authority,[1] “the decision to direct rectification is necessarily anterior to the giving of a direction for rectification.”

    [1] [2013] QSC 057 at [18].

21. The decision in McNab and as I understand the declaration given in J M Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority[2] was only concerned with the directions to rectify actually given. That decision did not concern the validity of the decision to give the direction/s.

    [2]        QSC 3907/13.

22. I, like Dalton J, cannot see that there is any overlap between the Supreme Court proceeding to declare directions void because of non-compliance with section 72(3) of the QBSA Act and the review proceeding in this Tribunal.

23. In my view, the existing circumstances do not necessitate any adjournment of the proceedings. This matter has been the subject of many directions and has been allocated 5 days for the hearing. I am told the expert witnesses who have provided a joint report as well as individual reports are available to give evidence on Wednesday 15 April 2013. These proceedings are to be heard with applications GAR 008/11 and 175-205/11. The parties in those matters have not sought an adjournment and are ready to proceed.

24. The application for an adjournment is refused.