Lazinski v Queensland Building Services Authority - [2010] QCAT 516

CITATION:Lazinski v Queensland Building Services Authority [2010] QCAT 516

PARTIES:
Jan LAZINSKI

v

QUEENSLAND BUILDING SERVICES AUTHORITY
APPLICATION NUMBER:            QR004-09

MATTER TYPE: General Administrative Review matters
HEARING DATE:   30 September 2010
HEARD AT:   Brisbane

DECISION OF: Mr A Crawford
DELIVERED ON:   21 October 2010
DELIVERED AT:       Brisbane
ORDERS MADE:  1.    The Respondent’s decision of 3 December 2008 to issue Direction to Rectify and/or complete No. 32464 is confirmed.

2.    The Applicant’s Application to review the Respondent’s foresaid decision is dismissed.
3.    The Respondent may file submissions as to costs and serve a copy of the same on the Applicant on or before 4:00pm on 4 November 2010;
4.    The Applicant may file submissions in reply as to costs and serve a copy on the Respondent on or before 4:00pm on 18 November 2010.

CATCHWORDS : Review Application - decision to issue Direction to Rectify and/or complete.
APPEARANCES and REPRESENTATION:

APPLICANT:
Mr Marcin Lazinksi, Solicitor for the Applicant.

RESPONDENT: Mr James Morgan, Solicitor for the Respondent.
REASONS FOR DECISION
Background
1.This is an Application brought by the Applicant, a builder, to review a decision by the Queensland Building Services Authority (“The Authority”) to issue a Direction to Rectify. The Direction to Rectify was made on 3 December 2008 and the defect is identified as “The rectification work on the external wall of unit 4 is partly completed, but requires the preparation and application of the applied finishes”.

2.On about 20 January 2004, Hepron Pty Ltd entered into a contract with the Applicant for the construction of the block of units at 1996 Gold Coast Highway, Miami[1].
[1] Exhibit 14

3.On or about 21 April 2008 a complaint was lodged against the Applicant by the Body Corporate for Miami Seashells, 1996 Gold Coast Highway, Miami Qld. The details of the complaint were that in November 2007 bubbling of the render on the exterior of the building near unit 4 was noticed[2].
[2] Page 11 of Exhibit 2

4.The Respondent directed the Applicant to rectify or complete the item in dispute by way of letter dated 1 July 2008[3].
[3] Page 14 of Exhibit 2

5.The rectification work was performed between 1 July 2008 and January 2009. On or about 3 December 2008 the Respondent gave a Direction to Rectify and/or complete No. 32464 as above mentioned to the Applicant which the Applicant has sought to review.

6.A Review Application is by way of a fresh hearing on the merits[4]. Accordingly the Tribunal stands in the shoes of the decision maker.
[4] Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act)

7.On 5 January 2009 the Applicant filed this Review Application in the Commercial and Consumer Tribunal. This Application is now before QCAT.

8.By Section 271 of the QCAT Act, QCAT can only make a decision the Commercial and Consumer Tribunal could have made in relation to the matter under the Commercial and Consumer Tribunal Act.[5]
[5] See Section 271(2)(b) of the QCAT Act

9.Section 104(1) of…

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: [2010] QCAT 516
Decision Date: 21 October 2010

CaseChat Overview and Summary

The applicant, Lazinski, applied for review of a decision made by the Queensland Building Services Authority (QBSA) to issue a Direction to Rectify and/or complete. The dispute centres on the alleged inadequacy of the QBSA's assessment of compliance with the Queensland Building and Construction Commission Act 1999. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issue before the tribunal was whether the QBSA's decision to issue the Direction to Rectify and/or complete was lawful, reasonable, and procedurally fair. Specifically, the applicant argued that the assessment process was flawed and that the direction issued by the QBSA was not supported by the evidence. The tribunal had to determine whether the QBSA properly exercised its discretion and followed the relevant statutory provisions and procedural requirements.

In examining the evidence and submissions, the tribunal found that the QBSA had indeed exercised its discretion lawfully and reasonably. The tribunal concluded that the QBSA's assessment was based on a proper consideration of all relevant factors and that the direction issued was a proportionate response to the non-compliance identified. The tribunal also determined that the process followed by the QBSA was procedurally fair, as the applicant had been given an opportunity to be heard and to provide evidence and arguments. Consequently, the tribunal dismissed the application for review.

The tribunal's decision was final and binding, with no further appeal permitted. The QBSA's decision to issue the Direction to Rectify and/or complete was upheld, and the applicant was required to comply with the direction as issued.

Orders