Leisure Pools Construction Townsville Pty Ltd v Queensland Building Services Authority

[2010] QCAT 166

CITATION: Leisure Pools Construction Townsville Pty Ltd v Queensland Building Services Authority [2010] QCAT 166

PARTIES: Leisure Pools Construction Townsville Pty Ltd

v

Queensland Building Services Authority

APPLICATION NUMBER:            QR259-09     

MATTER TYPE:   Building matters

HEARING DATE:   Decision on the papers

HEARD AT:   Brisbane

DECISION OF:   Peta Stilgoe

DELIVERED ON:   23 March 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Applications for extension of time to file dismissed.

CATCHWORDS: Extension of time - reviewable decisions - jurisdiction - section 87(2)(b) Queensland Building Services Authority Act

APPEARANCES and REPRESENTATION (if any):

REASONS FOR DECISION

1. Leisure Pools Construction Townsville Pty Ltd ("Leisure Pools") has applied for an extension of time in which to lodge an application for reviews of directions to rectify issued by the Authority.

1. The Authority issued two directions to rectify, both numbered 33148, one on 17 July 2009 and another on 30 June 2009. On 30 July 2009 the Authority gave notice of its intention to take action for failing to comply with a direction to rectify. That notice has a file reference of 3-1188-09. The Authority issued a penalty notice on 8 September 2009.

1. The history of applications by Leisure Pools is a little complicated:

   a.On 26 August 2009, Leisure Pools filed an application for review of the letter of 30 July 2009 (file number QR208-09).

   b.In file 208-09, by letter dated 8 October 2009, Leisure Pools applied to extend the time in which to file an application for review of the direction dated 30 June 2009.

   c.By application dated 6 October 2009, Leisure Pools filed an application for review of the direction to rectify dated 17 June 2009 (file number QR259-09).

   d.By application filed on 27 October 2009 in QR259-09, Leisure applied to extend the time in which to file an application for review of the direction dated 17 June 2009.

   e.On 25 February 2010, the Tribunal ordered that QR208-09 and QR259-09 be consolidated.

1. There is no dispute that the applications for review of the directions to rectify were filed outside the requisite 28 days.

1. Section 86 of the Queensland Building Services Authority Act 1991 (“the QBSA Act”) sets out those decisions of the Authority that are reviewable by the Tribunal. A direction to rectify is reviewable – section 86(1) (e).

1. Section 86(2)(b) of the QBSA Act states:

   “The tribunal must not review the following decisions of the authority—

   (a)      a decision to recover an amount under section 71;

   (b)a decision to direct rectification or completion of tribunal work by a building contractor and any finding by the authority in arriving at the decision if—

   (i)28 days have elapsed from the date the direction to rectify or complete was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision; and

   (ii)       the authority has—

   (C)started a prosecution, or served an infringement notice, for an offence against section 72(10);”

2. The Authority says that, because of section 86(2)(b), the Tribunal has no jurisdiction to review the directions to rectify and Leisure Pools’ applications must be dismissed.

1. Whether or not the Tribunal has jurisdiction depends upon one issue – whether the directions to rectify were served on Leisure Pools.

1. The Authority was entitled to serve the directions by post. Section 39 of the Acts Interpretation Act 1954 deals with service by post. Service is taken to have been effected at the time at which the letter would have been delivered in the ordinary course of post, unless the contrary is proved.

1. Leisure Pools says it never received the directions to rectify. The first notification it received from the Authority was the letter of 30 July 2009.

1. The Authority has referred the Tribunal to the decision of McGill DCJ in Manwin –v- Queensland Building Services Authority[1]. His Honour, at paragraph 21, drew a distinction between non-receipt and non-delivery, pointing out that “it is well-established that non-receipt is not proof of non-delivery”.  The High Court in Fancourt –v- Mercantile Credit Ltd[2] said this: “delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post.”

   [1] [2007] QDC 298

   [2] (1983) 154 CLR 87

1. Leisure Pools does not say, nor does it attempt to prove, that the notices were not delivered. As Leisure Pools has not disproved delivery of the notices, delivery is deemed to have taken place.

1. If delivery of the notices is deemed to have taken place, then service is effected and section 86(2) of the QBSA Act operates. Leisure Pools did not apply to the Tribunal for a review of the decision within 28 days of service and the Authority has served an infringement notice. Therefore, in the words of section 86(2), the Tribunal must not (my emphasis) review the decision to issue a direction to rectify.

1. The Tribunal does not have jurisdiction to review the directions to rectify dated 17 and 30 June 2009.

1. That leaves the application for a review of the letter of 30 July 2009. That letter is reviewable under section 86(1)(f) – a decision that Tribunal work undertaken at the direction of the Authority is or is not of a satisfactory standard. Leisure Pools filed an application within time and the Tribunal has jurisdiction to hear it.