McDonald v Queensland Building Services Authority

CITATION: McDonald v Queensland Building Services Authority [2012] QCAT 224

PARTIES:	Mr Jonathan Steward McDonald (Applicant/Appellant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER: GAR292-11 / GAR019-12

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: K Buxton, Member

DELIVERED ON: 31 May 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Application to strike out GAR191-12 is dismissed.

2.    Application to strike out GAR292-11 is dismissed.

3. Applications GAR019-12 and GAR292-11 are consolidated pursuant to section 54 of the QCAT Act.

4.    The consolidated action be relisted for compulsory conference before Dr Bridget Cullen, Member, at a date to be fixed by the registry.

CATCHWORDS:

Striking out – whether vexatious or abuse of process – Tribunal determination of jurisdiction

Queensland Civil and Administrative Tribunal Act 2009, ss 47, 54
Queensland Building Services Authority Act 1991, s 86(2)

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. Mr McDonald is a builder who undertook works for the owners of 24 George Street, Helidon, Queensland 4344 (the “homeowners”) and who has now filed two applications in QCAT seeking review of decisions of the Queensland Building Services Authority (the “QBSA”).  The details of each application are as follows:

   (a)GAR292-11 in which Mr McDonald seeks review of the BSA’s decision of 8 April 2010 to issue direction to rectify number 34686; and

   (b)GAR019-12 in which Mr McDonald seeks review of the QBSA’s decision of 15 December 2011, which he received on 20 December 2011, which he describes as a decision terminating the contract between himself and the homeowners for the works at 24 George Street, Helidon.

2. By application filed 5 March 2012 in GAR292-11 the QBSA has sought to have that proceeding struck out on the basis that the application is outside the Tribunal’s jurisdiction by virtue of the operation of section 86(2) of the Queensland Building Services Authority Act 1991 (the “QBSA Act”).

3. By application filed 8 March 2012 in GAR019-12 the QBSA has sought to have that proceeding struck out as vexatious or an abuse of process pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (the “QCAT Act”).

4. These applications are considered together as the background to the actions inextricably links the two proceedings.  Mr McDonald commenced proceedings in the former Commercial and Consumer Tribunal (the “CCT proceedings”) against the homeowner in relation to monies outstanding from the homeowner.  Included in his application for relief was an order that the notice given by the homeowners on 19 August 2008 was ineffective and that the contract between them had not been terminated.  On the day scheduled for the determination of that matter before the CCT, 24 November 2009, the action was compromised by the parties on the basis that Mr McDonald’s claim and the homeowners counter claim be dismissed and…