Knuth v Queensland Building and Construction Commission - [2022] QCAT 172

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Knuth v Queensland Building and Construction Commission [2022] QCAT 172

PARTIES: JEFFREY KNUTH T/AS ROOFGUARD ROOF PAINTING

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR368-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

9 May 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

The Application for leave to file the Amended Application to review a decision dated 3 March 2020 is refused.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – GENERALLY – whether leave to amend should be granted to add review of earlier decisions – whether Tribunal has equitable jurisdiction to permit review

Human Rights Act 2019 (Qld), s 31, s 48, s 108

Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 86A, s 86B, s 86C, s 86D, s 86E, s 86F, s 87

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 6, s 9, s 17, s 18, s 19, s 64, s 164

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241 [2011] QCAT 277
Body Corporate for Alto Gladstone CTS 45291 v Queensland Building and Construction Commission [2020] QCATA 6
Dream Suburbs Pty Ltd v Body Corporate for Persse Palace & Ors [2019] QCAT 373
Gorton v The Commonwealth [1992] 2 Qd R 603
Haimes vQueensland Building and Construction Commission [2018] QCAT 361
Hawkins v Clayton (1988) 164 CLR 539
HK Developments Pty Ltd v Doeuk [2013] QCAT 504
Owen v Menzies [2013] 2 Qd R 327
Peterson Management Services Pty Ltd (ACN 094234474) as trustee for the Peterson Family Trust v Body Corporate for the Rocks Resort Community Title Scheme 9435 (No 1) [2014] QCAT 541
Queensland Building and Construction Commissionv Watkins [2014] QCA 172
Queensland Building and Construction Commission v Whalley [2018] QCATA 38
Wyatt & Anor v Queensland Building and Construction Commission [2018] 396
Salam v Henley Properties (Qld) Pty Ltd [2015] QCATA 118
Tanna v Queensland Building and Construction Commission [2021] QCAT 170

Vanden Hoven & Anor v Queensland Building and Construction Commission [2018] QCAT 456

APPEARANCES & REPRESENTATION:

Applicant:

E Sarinas, Sarinas Legal

Respondent:

G Phillips, in house lawyer

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)

REASONS FOR DECISION

Mr Knuth contracted to perform roof painting and certain repair works for $12,800 for a homeowner, who subsequently made a complaint to the Queensland Building and Construction Commission (QBCC). Prior to the works being completed there was a major weather event in the locality. The homeowner claimed damage was caused by water leaking through the ceiling. The QBCC conducted an early dispute resolution process to seek to resolve the complaint by agreement between the parties. Mr Knuth agreed to perform some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCAT 172
Decision Date

CaseChat Overview and Summary

The applicant, Mr Jeffrey Knuth trading as Roofguard Roof Painting, applied to the Queensland Civil and Administrative Tribunal (QCAT) for review of decisions made by the Queensland Building and Construction Commission (QBCC). Mr Knuth sought to amend his application to include additional decisions made by the QBCC for review. The QBCC opposed the application to amend on the basis that the amendments were outside QCAT’s jurisdiction and time limits. The central issue was whether QCAT had jurisdiction to entertain a review of the additional decisions sought to be reviewed by Mr Knuth. The Tribunal held that it did not have jurisdiction to entertain a review of the additional decisions because they were either not reviewable or time limits for review had expired. The Tribunal refused leave to amend the application to include the additional decisions for review.

The parties in this case are Mr Jeffrey Knuth, trading as Roofguard Roof Painting, and the QBCC. The dispute arises from a complaint made to the QBCC by a homeowner that work performed by Mr Knuth was defective and incomplete. The QBCC made several decisions in relation to the complaint, including a direction to rectify (DTR Decision), a finding that the work was not fixed or completed (WNF Decision), and a scope of work decision (SOW Decision). Mr Knuth applied to QCAT for review of the internal review decision (Internal Review Decision) which confirmed the WNF Decision. He subsequently sought leave to amend his application to include the DTR, WNF and SOW Decisions for review. The QBCC opposed the application to amend on the basis that QCAT did not have jurisdiction to review the additional decisions and that the application was out of time.

The court held that QCAT did not have jurisdiction to entertain a review of the DTR Decision because it was no longer reviewable as the QBCC had served a notice advising that a claim under the statutory insurance scheme had been approved in relation to the work subject of the DTR. The court also held that QCAT did not have jurisdiction to entertain a review of the WNF Decision because it was no longer a reviewable decision having been replaced by the Internal Review Decision. Finally, the court held that QCAT did not have jurisdiction to entertain a review of the SOW Decision because no application for external review was commenced within 28 days of Mr Knuth receiving it. The application to amend the application to include the additional decisions for review was refused.

Orders