Krishnan v Queensland Building and Construction - [2022] QCAT 63

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION: Krishnan v Queensland Building and Construction
Commission [2022] QCAT 63
PARTIES: MANU KRISHNAN
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION
COMMISSION
(respondent)
APPLICATION NO/S: GAR412-20
MATTER TYPE: General administrative review matters
DELIVERED ON: 8 February 2022
HEARD AT: Brisbane
DECISION OF: Member Sammon

ORDERS:

1.

The Application filed by the applicant Manu Krishnan on 3 March 2021 to extend the time for filing his Application to review a decision by the respondent Queensland Building and Construction Commission is dismissed.

2.

The Application to review a decision of the respondent Queensland Building and Construction Commission filed by the applicant Manu Krishnan on 23 October 2020 is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – contract for construction of a house – claim under statutory insurance scheme in Queensland Building and Construction Commission Act 1991 (Qld) – whether contract was abandoned by both parties

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – application to extend time to file application to Tribunal to review decision of Queensland
Building and Construction Commission – application of
s 61 of Queensland Civil and Administrative Tribunal Act
2009 (Qld)
Queensland Building and Construction Commission Act
1991 (Qld), s 86, s 86C, s 86E
Queensland Building and Construction Commission
Regulation 2018 (Qld), schedule 6
Queensland Civil and Administrative Tribunal Act 2009
(Qld), s 3(b), s 6, s 17, s 33, s 47, s 61
Crime and Misconduct Commission v Chapman & Anor
[2011] QCAT 229
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138
CLR 423 at 434
APPEARANCES & This matter was heard and determined on the papers
REPRESENTATION: pursuant to s 32 of the Queensland Civil and
Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Introduction

In an application filed in the Tribunal on 23 October 2020, the applicant Mr Krishnan applied to review a decision made by the respondent Queensland Building and Construction Commission (QBCC) to refuse his claim under the Queensland Home Warranty Scheme arising out of a contract for construction of a home for him. The Warranty Scheme is a statutory insurance scheme established under the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act).
The basis of Mr Krishnan's claim on the Warranty Scheme is that a contract he entered into with a builder for construction of a home and swimming pool was not completed, and ground to a halt after some work was done by the builder for a swimming pool. He subsequently entered into a contract with another builder to complete the work.
Mr Krishnan filed his application to the Tribunal outside the time required under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act). It was therefore necessary for Mr Krishnan to apply to the Tribunal for an extension of time in which to do so. This decision is on Mr Krishnan's application for that extension of time.
Statutory framework on applications for extensions of time, and applicable principles
For the Tribunal’s review…

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 63
Decision Date

CaseChat Overview and Summary

The applicant, Manu Krishnan, sought to challenge a decision by the respondent, the Queensland Building and Construction Commission (QBCC), to reject his claim under the Queensland Home Warranty Scheme, which arose from a contract for the construction of a home and swimming pool. The primary legal issues were whether the Tribunal should grant an extension of time for Mr Krishnan to file his application for review of the QBCC’s decision, and whether the application for review should succeed. The statutory framework under which the application for an extension of time was to be considered included the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). The principles that the Tribunal applied to decide whether to grant an extension of time included the strength of the case, the length of the delay, and the interests of justice. Mr Krishnan’s explanation for the delay was that he could not afford to pay his solicitor to file the application. The QBCC submitted that this was not a sufficient reason for the delay given that he was self-represented in the Tribunal’s current proceeding and had been informed of his review rights and the need to file an application within the required time. The QBCC submitted that Mr Krishnan’s prospects of success on the merits of his application for review were very poor, because the contract in question was mutually abandoned by both parties. The QBCC submitted that it would be prejudiced if an extension of time were granted, but the Tribunal was not persuaded that this was the case. In the end, the Tribunal concluded that the interests of justice were best served by refusing the application for an extension of time. As a result, Mr Krishnan's application for review was dismissed for lack of substance.

Orders