Neill v Queensland Building Services Authority - [2009] QCAT 44

Queensland Civil and Administrative Tribunal Act 2009

Citation:	Neill v Queensland Building Services Authority [2009] QCAT 44
Parties:	Jason Neill -v- Queensland Building Services Authority

Application No: QR221-09

Matter Type: General administrative review matters

Delivered on: 10^th December 2009

Delivered at: Brisbane

Hearing date: On the papers

Decision of: Dr Bridget Cullen Mandikos

Catchwords: Withdrawal of Application by consent, section 46 of the Queensland Civil and Administrative Tribunal Act 2009.

Number of
Paragraphs: 6

ORDERS MADE:

Leave is granted, permitting the Applicant, Jason Neill, to withdraw his Application for Review brought against the Respondent, the Queensland Building Services Authority.

The parties to bear their own costs in this matter.

Reasons for Decision:

This is an application for review of a decision by the Queensland Building Services Authority (“QBSA”), dated 7^th August 2009, involving a decision that the contract in question had been (1) validly terminated for reasons other than the fault of the owner, having the consequence of allowing a claim for non-completion and defective works under the statutory insurance scheme; and (2) seeking review of the QBSA’s scope of works decision.

Although other matters were raised in the Applicant’s application for review filed on 4^th September 2009 with the then Commercial and Consumer Tribunal, by Order dated 12^th November 2009, limited the reviewable matters to those mentioned in paragraph 1 above. The application concerning the scope of works decision was limited to consideration as to whether those works were reasonably necessary to rectify the defects identified in the Direction to rectify issued by the QBSA to the Applicant on 3^rd June 2009.

The Commercial and Consumer Tribunal has amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the Commercial and Consumer Tribunal: section 256 Queensland Civil and Administrative Tribunal Act 2009.

On 2^nd December 2009, the Applicant and Respondent filed a jointly signed QCAT Application for decision/order by consent with the QCAT registry, requesting orders permitting the withdrawal of the Applicant’s Review Application; and (2) requesting that the parties bear their own costs of and incidental to the application.

Section 46 of the Queensland Civil and Administrative Tribunal Act 2009 provides that with the leave of the Tribunal, withdrawal of an application is permitted. I grant this leave, and permit the Applicant to withdraw his Application for Review.

The parties to bear their own costs of and incidental to the Application for Review.

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.

Continue reading Neill v Queensland Building Services Authority

Details

AGLC: Neill v Queensland Building Services Authority [2009] QCAT 44
Case: [2009] QCAT 44
Decision Date: 10th December 2009

CaseChat Overview and Summary

In the case of Neill v Queensland Building Services Authority, the applicant, Jason Neill, sought to withdraw his Application for Review against the Queensland Building Services Authority (QBSA). The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT), with the tribunal exercising its jurisdiction under section 46 of the Queensland Civil and Administrative Tribunal Act 2009. The dispute arose from a decision made by the QBSA regarding a matter pertaining to building services, and Neill sought to retract his application due to an agreement between the parties.

The primary legal issue before the tribunal was whether the application could be withdrawn with consent, as per the provisions of section 46 of the Act. The court had to consider if the withdrawal was in the interest of justice and if the application was being withdrawn without any prejudice to either party. The tribunal also needed to ensure that the withdrawal did not contravene any statutory requirements or principles of natural justice.

The tribunal examined the circumstances surrounding the withdrawal and the reasons provided by the parties. It noted that both parties had agreed to the withdrawal and that there was no evidence of any coercion or unfairness. The tribunal was satisfied that the withdrawal was made in good faith and in the interest of justice. Given these considerations, the tribunal found that the application could be lawfully withdrawn. Consequently, the tribunal granted leave to Neill to withdraw his Application for Review, and both parties were ordered to bear their own costs.

The tribunal's decision was clear and concise, focusing on the consent and fairness of the withdrawal. The tribunal ensured that the application was withdrawn in accordance with the statutory provisions and that the interests of justice were upheld. The final orders reflected the tribunal's findings and directed that the application be withdrawn by consent, with each party bearing their own costs.

Orders

Orders of the court

Leave is granted, permitting the Applicant, Jason Neill, to withdraw his Application for Review brought against the Respondent, the Queensland Building Services Authority.

The parties to bear their own costs in this matter.

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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