Leisure Pools Construction Townsville Pty Ltd v Queensland Building Services Authority
[2010] QCATA 44
•1 September 2010
| CITATION: | Leisure Pools Construction Townsville Pty Ltd v Queensland Building Services Authority [2010] QCATA 44 |
| PARTIES: | Leisure Pools Construction Townsville Pty Ltd (Applicant/Appellant) |
| v | |
| Queensland Building Services Authority (Respondent) |
APPLICATION NUMBER: APL054-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 1 September 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application for leave to appeal refused
| CATCHWORDS : | BUILDING DISPUTE – SWIMMING POOL – DIRECTION TO RECTIFY – Queensland Building Services Authority Act 1991, s 86(2)(b) – MEANING AND EFFECT – where respondent hired applicant to construct a swimming pool in 2007 – where respondent filed a complaint with the QBSA in 2009 about condition of the pool – where the QBSA issued to the applicant directions to rectify on 17 June and 30 June 2009 – where applicant sought review of the directions – where applicant alleges that it was not served with the directions – where s 86(2)(b) of the QBSA Act prohibits the Tribunal from reviewing directions filed in the Tribunal 28 days after service – whether directions deemed served in law – whether Member erred in refusing applications for review |
REASONS FOR DECISION
In 2007 Leisure Pools Construction Townsville Pty Ltd built a swimming pool at the home of Mr and Mrs Janoska at Hermit Park, Townsville. In early 2009 they called Leisure Pools’ back to the site with a complaint that the walls and floor of the pool were bulging inward. Apparently dissatisfied with Leisure Pools response, the Janoskas then contacted the Queensland Building Services Authority (QBSA).
QBSA inspected the pool and claims that it then sent two letters to Leisure Pools about the alleged problems with it on 17 June and 30 June 2009. The first required Leisure Pools to ‘rectify the defective installation of the pool that has failed, not installed as per the current Australian Standards AS1839:1994’. The second contained a direction to ‘rectify the defective installation of the pool that has allowed the pool walls and floor to bulge’.
When, as the QBSA alleges, Leisure Pools failed to comply with these directions, the Authority sent it a further letter dated 30 July 2009 alleging that Leisure Pools had not followed the direction of 30 June and performed the necessary rectification work and that its failure may result in further action by the Authority. The letter also advised Leisure Pools that the Authority’s decision could be reviewed within 28 days by application to the Commercial and Consumer Tribunal (which was, on 1 December 2009, absorbed into QCAT).
The history of the matter after that time is set out in the decision of a member of QCAT of 23 March 2010, to which this appeal proceeding relates. Leisure Pools had filed, in the former Tribunal:
(a) on 26 August 2009, an application to review the letter of 30 July 2009;
(b) by letter of 8 October 2009, an application to extend the time in which to file an application to review the direction contained in the letter of 30 June 2009;
(c) by application dated 6 October 2009, an application to review the direction contained in the letter of 17 June 2009; and,
(d) by application filed 27 October 2009, an application to extend the time in which to file an application for review of the direction of 17 June 2009.
The letters of 17 June and 30 June 2009 were what are called, under the Queensland Building Services Authority Act 1991 (QBSA Act) ‘directions to rectify’. They may be reviewed under s 86(1)(e), but s 86(2)(b) specifically prohibits this Tribunal (and its predecessor) from reviewing them unless the application for review is filed in the Tribunal within 28 days of service.
Leisure Pools claimed that it never received either direction to rectify and, in fact, received nothing from QBSA until the letter of 30 July 2009. Notwithstanding those contentions the learned member upheld QBSA’s submission that the letters were deemed, in law, to have been delivered and, in light of the prohibition, QCAT had no jurisdiction to review either of them.
The letter of 30 July 2009 is what is described, in s 86(1)(f) of the QBSA Act as a decision that work undertaken at the direction of the Authority is or is not of a satisfactory standard, and Leisure Pools’ application to review it was within time and, the learned Member held, QCAT has jurisdiction to hear it.
The proceedings have been slightly complicated by the fact that Leisure Pools’ applications to extend time in respect of the alleged QBSA directions of 17 June and 30 June 2009 were given separate file and proceeding numbers in the former CCT, and on 25 February 2010 QCAT ordered that they be joined.
Leisure Pools’ application for leave to appeal, and to appeal the decision of the QCAT Tribunal member of 23 March 2010 is, intending no respect, a little diffuse and difficult to understand. The grounds advanced in the application form and in subsequent written submissions provided by Leisure Pools (pursuant to directions from this Appeal Tribunal that the matter would be determined on the papers, and that the parties were to file and exchange written submissions) suggest reliance on two grounds:
(a) that the letters of 17 June and 30 June are undated; were never received by Leisure Pools; and there is, therefore, reasonable doubt that they were actually sent or delivered; and,
(b) that the applications in respect of proposed reviews of the failure to rectify have been made in time; and, the fact the two CCT files have now been joined supports the conclusion that the applications to extend time were also made in time.
Because, then, any appeal would involve questions of fact or mixed law and fact, Leisure Pools is obliged to seek this Appeal Tribunal’s leave to appeal: Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(b). An applicant for leave to appeal is obliged to show a prima facie case of error in the primary decision, and that there is a question of importance upon which further argument and a decision of the Appeal Tribunal would be of public advantage[1].
[1] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Freuhauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580
The allegation about alleged non-receipt of the QBSA letters of 17 June and 30 June 2009 was comprehensively addressed by the learned QCAT member in her decision of 23 March 2010. As she pointed out, s 39 of the Acts Interpretation Act 1954 provides that service is taken to have been effected by post at the time at which a letter would have been delivered in the ordinary course, unless the contrary is proved[2].
[2] See Manwin v Queensland Building Services Authority [2007] QDC 298; and, Fancourt v Mercantile Credit Ltd (1983) 154 CLR 87
As she also correctly observed, Leisure Pools has not attempted to prove that the notices were not delivered. In its submissions to this Tribunal Leisure Pools contends that the conclusion is illogical, and alleges that the QBSA letters are undated which suggests, it argues, that there are reasonable grounds for doubting QBSA’s claim that it actually sent them. As the Authority says in its reply submissions, however, there are dates on each of the letters, albeit on the third page.
In any event nothing in Leisure Pools’ submissions suggests that the learned member misapplied, or made any error in, her analysis of the facts or her application of the correct legal principles to them. In the absence of proof that the letters were not sent, or were not delivered in the ordinary course of post, Leisure Pools’ submissions must fail. Its claims, in its submissions, that the law about these matters is irrational is not entirely surprising but fail to appreciate that, without the application of workable legal principles to disputes of this kind, claims of non-receipt could be used mischievously or unduly clog or impede the effective operation of the legal system.
It is appropriate to reiterate that, notwithstanding its assertions of non receipt, Leisure Pools has failed to offer any evidence which disproves delivery or evidence which should have satisfied the learned member at first instance that there existed any problem with the delivery of mail – for example, evidence of items being returned, or of non-reception, or deficiencies either in the mail system employed QBSA, or Leisure Pools. In short, Leisure Pools failed, before the learned member, to meet the burden of disproving delivery by offering any evidence to the contrary other than an unspecified claim that the Authority had sent undated letters. Once that is understood, no ground for the granting of leave to appeal is apparent.
The second ground is, with respect, misconceived. The joinder of Leisure Pools’ two original applications to the CCT has no legal effect upon the operation of s 86(2)(b)(i) of the QBSA Act – that is, that QCAT cannot review a decision to direct rectification if 28 days have elapsed from the date of direction to rectify before the application to review is made.
Leisure Pools has failed, then, to establish any basis upon which leave to appeal ought to be granted to it, and its application is refused. That conclusion does not, of course, effect its other application to review the Authorities letter of 30 July 2009 which can now, if it wishes, proceed.
0
2
0