Mai v Queensland Building and Construction Commission - [2022] QCAT 296

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mai v Queensland Building and Construction Commission [2022] QCAT 296

PARTIES:

PHUONG MAI

(applicant)

V

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR441-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

2 August 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The strike out application filed on 19 November 2021 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where complaint made within 6 year and 6 month period – where QBCC failed to make a decision within the 6 year and 6 month period – whether direction to rectify can be issued – whether application should be struck out

Queensland Building and Construction Commission Act 1991 (Qld), s 72A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24

Doolan v Queensland Building and Construction Commission [2017] QCAT 58

Jorg & Anor v Queensland Building and Construction Commission [2020] QCAT 528
Kabir v Queensland Building and Construction Commission [2016] QCAT 180
NG & Hastings v Queensland Building Services Authority [2009] QCCTB 137
Shauer v KJ & S O’Brien Contractor Pty Ltd & Ors [2019] QCAT 37

Stephens & Anor v Queensland Building and Construction Commission [2018] QCAT 281

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

The Queensland Building and Construction Commission (‘QBCC’) has applied to strike out the review proceedings commenced by Mr Mai. Mr Mai has sought review of a decision of the QBCC dated 22 April 2021 not to issue a direction to rectify.
The QBCC relies on s 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), which provides:
A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.
The chronology in the present case is straightforward:
(a)On 22 May 2014, work on Mr Mai’s house was completed.
(b)On 27 July 2020, Mr Mai lodged a complaint with the QBCC.
(c)On 22 November 2020, the period of 6 years and 6 months after the completion of the work expired.
(d)On 22 April 2021, the QBCC decided not to issue a direction to rectify.
This position is wholly unsatisfactory. Had the QBCC made a decision within 118 days of Mr Mai lodging his complaint, the decision would have been made within the 6 year and 6 month period. Mr Mai had no way of predicting it would take the QBCC 270 days to make its decision, but had he somehow been able to accurately predict this it would have effectively reduced the 6 year…

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: [2022] QCAT 296
Decision Date

CaseChat Overview and Summary

The matter in Mai v Queensland Building and Construction Commission was heard and determined on the papers by the Queensland Civil and Administrative Tribunal. Mr Mai sought review of a decision by the Queensland Building and Construction Commission not to issue a direction to rectify in relation to work completed on his house in May 2014. The QBCC applied to strike out the review proceedings on the basis that the complaint was made outside the 6 year and 6 month period, and therefore no direction to rectify could be given. The QBCC argued that Mr Mai's complaint, lodged in July 2020, was too late as the period of 6 years and 6 months had expired in November 2020. The Tribunal considered that it was not appropriate for a complaint made within time to be defeated by a delay in the QBCC making its decision. It held that it was open to the QBCC to apply to extend time where it was unable to make a decision within the 6 year and 6 month period in respect of a complaint made within that period. The Tribunal declined to decide the matter on an interlocutory basis and dismissed the strike out application, finding that a decision should only be made after a full canvassing of the factual circumstances at a hearing.

Orders