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

[2011] QCAT 60

CITATION:		JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2011] QCAT 60
PARTIES:	JM Kelly (Project Builders) Pty Ltd
v
Queensland Building Services Authority

APPLICATION NUMBER:   GAR007-11

MATTER TYPE: Building matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe, Member

DELIVERED ON: 24 February 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Stay application granted.

CATCHWORDS : 

APPLICATION TO STAY – where direction to rectify issued 12 months after inspection – where Supreme Court proceedings on foot – where Authority concedes it cannot compel compliance – whether occupiers are prejudiced.

Queensland Civil and Administrative Tribunal Act 2009 ss 22(3), 22(4), 58

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr T Sullivan SC instructed by Cooper Grace Ward
RESPONDENT:	HWL Ebsworth

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. JM Kelly (Project Builders) Pty Ltd (JM Kelly) has applied for a stay of the Authority’s decision on 17 December 2010 to issue a direction to rectify.

2. Section 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) gives the tribunal jurisdiction to grant a stay. The factors that the tribunal are required to take into account when considering the stay are set out in s 22(4):

a)The interests of any person whose interest may be affected by the making of the order;

b)Any submission by the decision maker;

c)The public interest.

1. The merits of the application for review are also a factor in the tribunal’s decision.[1]

   [1]        Jennings v Design and Procure Pty Ltd [2010] QCATA 36.

2. The Authority’s submissions are these:

a)JM Kelly had not sworn, or descended, to particulars about the matters in support of its application for a stay.  In particular, JM Kelly failed to explain how the refusal of a stay would prejudice the Supreme Court proceedings currently on foot between JM Kelly and the principal.

b)The stay is of no utility:

i)     JM Kelly will not be prejudiced by the decision because it cannot now undertake the work and it cannot be compelled to undertake the work until the conclusion of the review.

ii) As the building in question is more than three levels, it is not “residential construction work” for which a claim can be progressed under the Authority’s statutory insurance scheme, nor can JM Kelly be liable under s 71 of the Queensland Building Services Authority Act 1991 (QBSA Act) to reimburse the Authority for any payment.

iii)   The only prejudice caused by the decision has already occurred and cannot be overcome by the stay.

c)JM Kelly will not be prejudiced in the Supreme Court proceedings because the decision of this tribunal is no more than an administrative decision upon which the Supreme Court will place little weight.

d)There is significant prejudice to other parties, namely the unit holders.

1. JM Kelly has pointed out that the tribunal does not necessarily require parties to swear their material.  It has also pointed out that the Authority has not sworn to any of its material.  The tribunal now has the benefit of copies of the pleadings in the Supreme Court; they are extensive and it is apparent that JM Kelly and the principal are engaged in a protracted dispute.

1. I am not convinced that a stay is of no utility.  The terms of s 72(15) of the QBSA Act, in fact, state that JM Kelly is only relieved of the obligation to comply with the direction if it has started a proceeding for review in the tribunal and the tribunal orders a stay of the decision.

2. It is true that the Supreme Court is not required to take much notice of decisions of the tribunal.  That is not to say, however, that a decision in this tribunal will not affect the way that the parties conduct those proceedings.  Findings of fact in this tribunal may well influence the parties’ attitude to the Supreme Court proceedings.

3. I note the Authority’s argument about prejudice to the unit holders.  I also note that the Authority’s inspection of the complex took place on 16 December 2009 yet a direction to rectify did not issue until 17 December 2010, a year later.  I cannot see how a stay of the Authority’s decision will prejudice the unit owners any more than a delay of twelve months in the Authority’s decision.  These factors make this application very different from that considered by Ms O’Callaghan in Elliott v Queensland Building Services Authority[2].

   [2] [2010] QCAT 180.

4. JM Kelly’s arguments against the direction to rectify are twofold: that it did not undertake the work the subject of the complaint; or, if it did do the work, it was at the express direction of the principal.  On the limited material available to me, these arguments are reasonably available to it.

[10]  There are two aspects of the Authority’s attitude to this proceeding that concern me:

a)JM Kelly filed its application for review within time.  The Authority’s assertion that JM Kelly has committed an offence under s 74(10) of the QBSA Act must be open to question and, in the circumstances of the proceeding, is provocative.

b)As JM Kelly points out, the direction was issued on 17 December 2010, giving it 28 days to rectify the defects.  That period included the Christmas break; the Authority must have known that the likelihood of compliance with the direction was remote.  Given the twelve month delay between inspection and issuing the direction, the Authority should not have considered a rectification period of 28 days, including the Christmas break, as appropriate in all the circumstances[3].

[3]        s 72(4) QBSA Act.

[11] The appropriate power is contained in s 22(3) of the QCAT Act – the power to grant a stay in proceedings where the applicant seeks a review of a reviewable decision – rather than in s 58, which operates in the tribunal’s original, review and appeal jurisdiction.[4]  Section 72(15) of the QBSA Act does not empower the tribunal to stay a decision; it simply identifies the consequences of such a decision.

[4]        See, for example, King v King [2010] QCATA 84.

[12]   The stay application should be granted.