Lucas v Queensland Building and Construction Commission - [2023] QCAT 484

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lucas v Queensland Building and Construction Commission [2023] QCAT 484

PARTIES:

DEBRA MAREE LUCAS

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR258-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 December 2023

HEARING DATE:

6 December 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

1.     The application for miscellaneous matters (reinstatement application) filed on 5 May 2023 is allowed.

2.     The application to extend time filed on 5 May 2023 is allowed.

3.     The time to file the application to review a decision is extended to 11 April 2023.

CATCHWORDS:

ADMINISTRATIVE LAW – GENERAL ADMINISTRATIVE REVIEW – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant withdrew application to review a decision to disallow claim on basis contract not validly terminated by applicant - where application withdrawn due to legal costs – where applicant discovered new evidence subsequent to withdrawal in support of her position that contract validly terminated – where applicant seeks reinstatement pursuant to s 46(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), whether leave to reinstate her application to review should be granted – whether extension of time should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33, s 35, s 46, s 61

Jensen v Queensland Building and Construction Commission [2019] QCATA 11

Jensen v Queensland Building and Construction Commission [2017] QCAT 232

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

On 11 January 2023 the applicant, Ms Lucas (the owner) filed an application to review an internal review decision dated 14 December 2022, being a decision to wholly disallow a claim under the Queensland Home Warranty Insurance Scheme on the basis the contract was not validly terminated at the default of the licensed contractor.
This review application was subsequently withdrawn by Ms Lucas by the filing of a Notice of Withdrawal on 23 January 2023. The owner says the main reason she withdrew was because she had just received a bill from her solicitors for $28 000 and that it had made her ‘sick to the stomach’. She had also been told it would cost her $20 000 in legal fees for an estimated three-day hearing at the Tribunal.
Subsequently Ms Lucas became aware of information that she says supports her claim that she had in fact validly terminated the contract, for example that she had been charged for the demolition stage when the demolition had not been completed in accordance with the contract/engineering drawings. Ms Lucas also said she discovered that she could be self-represented in the Tribunal.
On 11 April 2023 Ms Lucas filed another application to review the same decision in the Tribunal. On 5 May 2023 Ms Lucas filed an application seeking reinstatement of the review proceedings which had been withdrawn and an application for an extension of time to file an application…

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: [2023] QCAT 484
Decision Date: 11 December 2023

CaseChat Overview and Summary

Lucas was a party to a dispute with the Queensland Building and Construction Commission, which was heard in the Queensland Civil and Administrative Tribunal (QCAT). The applicant, Lucas, had previously withdrawn her application for review of a decision to disallow her claim on the basis that her contract was not validly terminated. She withdrew the application due to legal costs, but subsequently discovered new evidence supporting her position that the contract was validly terminated. Lucas sought reinstatement of her application to review the disallowed claim and an extension of time to file that application.

The central legal issues in this case were whether leave should be granted to reinstate Lucas's application to review the disallowed claim and whether an extension of time should be granted to allow her to file that application. The court needed to determine if the circumstances justified the reinstatement and extension of time, particularly in light of the new evidence Lucas had uncovered.

The court considered the relevant statutory provisions, particularly section 46(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), which allows for the reinstatement of an application where it appears to the court that there are exceptional circumstances justifying the reinstatement. The court found that Lucas's discovery of new evidence that supported her position and the fact that she had acted promptly in seeking reinstatement constituted exceptional circumstances. Additionally, the court considered the balance of convenience, and found that granting the extension of time would not unfairly prejudice the Commission. Therefore, the court allowed the application for reinstatement and the application for an extension of time.

The final orders of the court were that the application for reinstatement filed on 5 May 2023 was allowed, the application to extend time filed on the same date was also allowed, and the time to file the application to review a decision was extended to 11 April 2023.

Orders

Orders of the court

1. The application for miscellaneous matters (reinstatement application) filed on 5 May 2023 is allowed.

2. The application to extend time filed on 5 May 2023 is allowed.

3. The time to file the application to review a decision is extended to 11 April 2023.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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