Munday v Queensland Building Services Authority
[2012] QCAT 15
•2 February 2012
| CITATION: | Munday v Queensland Building Services Authority [2012] QCAT 15 |
| PARTIES: | Ian Ronald Munday (Applicant/Appellant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR234-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 2 February 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 2 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for review filed 5 August 2011 is struck out. |
| CATCHWORDS: | Extension of Time – where application to review a scope of works – where application must be filed within 28 days of the decision being served on the applicant – where 28 days had lapsed – whether power to extend time – where powers conferred on the Tribunal under the QCAT must be read subject to the enabling Act Queensland Civil and Administrative Tribunal Act 2009, s 61 Lyons v Dreamstarters Pty Ltd [2011] QCATA 142 Smith v Queensland Building Services Authority [2010] QCAT 448 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Mundy is a registered builder. He entered into a contract with David and Kathleen Rolphe to do building work at their property in Morven.
On 16 August 2010 Mr and Mrs Rolphe lodged a complaint with the Building Services Authority about Mr Mundy’s building work. On 26 October 2010 the Authority issued a Direction to Rectify and/or Complete no: 35457 to Mr Mundy which required him to rectify building work within 28 days.
On 2 December 2010 the Authority wrote to Mr Mundy to advise that they were not satisfied that Direction No 35457 had been complied with. The effect of this was that the homeowner could then apply under the Queensland Home Warranty Insurance Scheme to have the building work rectified by the Authority.
On 11 April 2011 the Authority advised Mr Mundy that the Rolphes had lodged claim under the Scheme.
On 20 July 2011 the Authority issued a ‘Notice of Debt’ in the sum of $160,000 which had been approved under the Scheme. It also included a Scope of Works.
On 5 August 2011 Mr Mundy filed an application to review a decision in the Tribunal seeking to review the Authority’s decision to issue the Notice of Debt and the Scope of Work. In his application, Mr Mundy says that he received the decision on 25 July 2011.
Section 86 of the Queensland Building Services Authority Act 1991 sets out the decisions that are reviewable by the Tribunal. This includes a decision about a scope of works to be undertaken under the statutory insurance scheme. However, section 86(2)(c) provides the Tribunal must not review a decision about a scope of works if 28 days have elapsed from the date the decision was served on the building contractor.
Mr Mundy did not review the decision to issue the Direction to Rectify No 35457 dated 26 October 2010 which was the subject matter of the scope of works upon which the insurance claim under the statutory insurance scheme has been approved. He did not apply within the 28 day period to review the decision to issue the scope of works. In the circumstances the Authority contends that the Tribunal has no jurisdiction to determine the review application. It relies on the submissions filed in support of an application that Mr Mundy’s proceeding be struck out.
Although the Tribunal made directions that Mr Mundy was to file submissions in reply to the Authority’s submissions by 16 December 2011 he has failed to do so. A follow up compliance letter was sent to Mr Mundy but there has been no response.
Mr Mundy’s application to review the Tribunal’s decision was filed out of time. Although the Tribunal has a general power to extend time under s 61(3) of the QCAT Act, that section must be read subject to the provisions of the Enabling Act[1]. The conclusion that the Tribunal does not have power to extend time under s 86(2) of the QBSA Act has also been affirmed in a number of decisions of the Tribunal[2].
[1]Lyons v Dreamstarters Pty Ltd [2011] QCATA 142.
[2]Smith v Queensland Building Services Authority [2010] QCAT 448; Customizer Kitchens QLD v Queensland Building Services Authority [2011] QCAT 13; Cornpig Pty Ltd v Queensland Building Services Authority {2011] QCAT 255.
The end result is inevitable that Mr Mundy’s application must be struck out because it was filed out of time and the Tribunal has no power to extend that time.
Therefore the order of the Tribunal will be that Mr Mundy’s application for review filed 5 August 2011 is struck out.
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