Last Laugh Pty Ltd v Queensland Building Services Authority

[2011] QCAT 298

CITATION: Last Laugh Pty Ltd v Queensland Building Services Authority [2011] QCAT 298

PARTIES:	Last Laugh Pty Ltd
v
Queensland Building Services Authority

APPLICATION NUMBER:   GAR384-10  

MATTER TYPE: General administrative review matters

HEARING DATE:     19 May 2011

HEARD AT:  Brisbane

DECISION OF: Mr Christopher Coyne, Member

DELIVERED ON: 23 June 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

[1]     The decision of the Queensland Building Services Authority to issue the direction to rectify 35320 be confirmed.

[2]     The application for review of the amended scope of works dated 21 October 2010 is dismissed and the decision of the Queensland Building Services Authority 21 October 2010 is affirmed.

[3]     The Applicant is ordered to pay the Respondent’s costs of $603.34 on or before 14 July 2011.

CATCHWORDS:

Compulsory conference – the Applicant failed to attend and sought a late adjournment – where Respondent’s expert attended from Bundaberg for the Conference

Costs – whether costs should be awarded for attendance of Queensland Building Services Authority’s expert

Queensland Civil and Administrative Tribunal Act 2009, ss 48, 72, 100

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	No Appearance
RESPONDENT:	Queensland Building Services Authority represented by Ms Emily Roberts in house solicitor

REASONS FOR DECISION

1. Last Laugh Pty Ltd has applied for a review of:

i.Direction 35320;

ii.The scope of works;

iii.Any fines imposed.

1. By that application, I take it to mean that the Applicant is seeking a review of the direction to rectify dated 20 August 2010; the amended scope of works dated 21 October 2010 and the Infringement Notice dated 20 October 2010.

1. At a directions hearing held on 3 February 2011 the Tribunal made directions for the parties to file submissions and statements.  The Respondent, the Queensland Building Service Authority (the Authority) has complied with those directions by filing submissions in respect of jurisdiction on 25 February 2011 and a statement of reasons also dated 25 February 2011.  Relevantly, the Applicant has failed to file and serve any submissions with respect to jurisdiction or any statement of evidence.  Those submissions and statements are now two months over due.

1. The application for review was listed for Compulsory Conference in Mackay on 22 March 2011 and it was adjourned on the Applicant’s request to be held in Brisbane.  The Tribunal directed on 3 March 2011 that the Compulsory Conference be held in Brisbane on 19 May 2011.  I am satisfied that on 22 March 2011 the copy of the Tribunal’s directions was forwarded pre paid post to the Applicant.

1. On 17 May 2011 the Applicant Last Laugh Pty Ltd requested an adjournment of the Compulsory Conference because:

a)    Ms Gott’s employer had been appointed to a natural disaster site in Western Australia and she will be leaving this week for an extended period of work in the area; and

b)    “Tim is currently working and living in Alice Springs and is also not able to attend”.

1. The request for an adjournment did not specify when personnel from Last Laugh Pty Ltd would be able to attend the Conference.

1. The Authority opposed the adjournment as:

   a)    It had already agreed to move the conference from Mackay to Brisbane to suit the convenience of Last Laugh Pty Ltd;

   b)    The Authority had committed to having the Authority’s expert, Mr Daniel Stephenson attend from Bundaberg; and

   c)    Last Laugh Pty Ltd has not filed any submissions or statements as directed.

1. I have determined that the adjournment should not be granted.  Last Laugh Pty Ltd has had sufficient time to arrange its affairs in order to attend the Compulsory Conference.  The Conference date was set some two months in advance and both the Tribunal and the parties have allocated considerable resources to enable the Conference to take place.  It is not appropriate for the parties to seek adjournments on late notice without just cause.

1. In relation to sections 48 and 72 of the Queensland Civil and Administrative Tribunal Act 2009, where the party fails to attend a Compulsory Conference or otherwise failed to comply with the Tribunals directions, the Presiding Member may order the proceedings be dismissed or struck out or make a decision adverse to the absent parties.

[10]  I am satisfied that Last Laugh Pty Ltd did receive sufficient notice of the Compulsory Conference and I am also satisfied that it has not provided the Tribunal with any adequate reason for its non attendance. 

[11]  The Authority’s representative has consented to my making a decision in the absence of Last Laugh Pty Ltd.

[12]  I have considered the material provided by the Authority and discussed the evidence with Mr Stephenson.  There is no evidence from Last Laugh Pty Ltd for which I can form a contrary view.  Therefore I am satisfied:

a)In relation to section 86(2)(b)(i) of the QBSA Act, 28 days have elapsed from the date the direction to rectify 35320 was received or deemed to be receipt by the Applicant; and

b)The Applicant did not, within the time, apply to the Tribunal for review of the decision to issue the direction to rectify; and

c)In terms of section 86(2)(b)(ii) of the QBSA Act, that;

i)Section 86(2)(b)(ii)(B) of the QBSA Act has been satisfied as the Authority served the notice of potential debt on the Applicant on 15 October and 21 October 2010 and

ii)section 86(2)(b)(ii)(C) of the QBSA Act has been satisfied as the Authority has severed the Infringement Notice for an offence against section 72(10) of the QBSA Act on the Applicant, that the purposed works detailed and the amended scope of works are works reasonably and necessary required to rectify the defective building work at the property as detailed in the direction to rectify.

[13]  The application for review should be therefore dismissed and the Authority’s decisions affirmed.

[14]  The Authority seeks an order that Last Laugh Pty Ltd pay Mr Stephenson’s costs of attending the Conference.  As I have already noted, Last Laugh Pty Ltd has not provided a reasonable excuse for its failure to file material or attend the conference.  The Authority has produced evidence of the costs of Mr Stephenson’s airfares and it is appropriate that Last Laugh Pty Ltd pay those costs.

[15]  I order that Last Laugh Pty Ltd pay the Authority’s costs of Mr Stephenson’s attendance in the sum of $603.34 the payment be made by 4:00pm on 14 July 2011, otherwise, I do not purpose to make any other order as to cost of the application for review.