QBCC v Egan; Benton v QBCC - [2021] QCATA 126

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

QBCC v Egan; Benton v QBCC & Anor [2021] QCATA 126

PARTIES: QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(applicant/appellant)

v

ANGELA EGAN

(respondent)

APPLICATION NO/S:

APL161-21

PARTIES:

NIGEL BENTON

(applicant/appellant)

v

ANGELA EGAN
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondents)

APPLICATION NO/S:

APL161-21 and APL166-21

ORIGINATING APPLICATION NO:

GAR360-19

MATTER TYPE:

Appeals

DELIVERED ON:

30 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

In APL161-21 and APL166-21:

1. The application to stay a decision filed on 14 June 2021 is refused.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where original decision by Queensland Building and Construction Commission to decline insurance cover under statutory insurance scheme – where QBCC decided building work was not ‘residential construction work’ – where tribunal decided work was ‘residential construction work’ – where tribunal remitted matter for reconsideration by the QBCC – where QBCC has appealed the decision – where QBCC applied for stay of decision – where QBCC asserted prejudice if stay not granted – balance of convenience considerations – where stay refused

Queensland Building and Construction Commission Act 1991 (Qld), s 67WA.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(1), s145(2), s145(3)(b).

Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453.

Day v Humphrey [2017] QCA 104.

Hessey-Tenney v Jones [2018] QCATA 131.

Simonova v Department of Housing and Public Works [2018] QCA 60.

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

What is this application about?

Mr Benton undertook building work for Dr Egan. The building works comprised improvements to a building (‘the structure’) described as a shed but which Dr Egan said was a dwelling with amenities including a laundry, kitchen, toilet, shower and full power facilities. The building works included the construction of verandas, a roofed patio, and the installation of a concrete pad and pump sheds.
Dr Egan claimed that the works were incomplete and defective. She complained to the Queensland Building and Construction Commission (‘QBCC’) about the works performed by Mr Benton. The QBCC investigated Dr Egan’s complaint and issued a direction to rectify to Mr Benton. Mr Benton sought a review of the decision to issue the direction to rectify. The QBCC subsequently varied the original decision and a revised direction to rectify was issued to Mr Benton. Mr Benton subsequently undertook further building work. The QBCC determined that the direction items had not been satisfactorily completed by Mr Benton. Dr Egan subsequently sought to claim under the Queensland Home Warranty Scheme. Dr Egan’s claim was denied by the QBCC on the basis that the structure was not a ‘residence’ or a ‘related roofed building’ and therefore not covered under the scheme (‘the original decision’).
Dr…

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 QBCC v Egan; Benton v QBCC

Details

AGLC: QBCC v Egan; Benton v QBCC [2021] QCATA 126
Case: [2021] QCATA 126
Decision Date: 30 September 2021

CaseChat Overview and Summary

In the matter of QBCC v Egan and Benton v QBCC, the Queensland Building and Construction Commission (QBCC) sought to appeal a decision of the tribunal that had ruled that certain building work was classified as ‘residential construction work’. This classification was significant because it determined the applicability of insurance cover under the statutory insurance scheme. The QBCC had previously declined to provide insurance cover on the basis that the work did not fall within the definition of ‘residential construction work’. The tribunal, however, disagreed and remitted the matter back to the QBCC for reconsideration. The QBCC subsequently applied for a stay of the tribunal's decision, arguing that immediate compliance would cause it significant prejudice and disrupt the statutory insurance scheme.

The court was tasked with determining whether the application for a stay should be granted. Key legal issues included whether the QBCC would suffer irreparable prejudice if the stay were not granted, and whether the successful party, Dr. Egan, was entitled to the fruits of her litigation success. The court examined the test for granting a stay, as outlined in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd, which emphasized the importance of not delaying the enforcement of court orders unless there is a risk of irreparable prejudice to the applicant. The court found that Dr. Egan was entitled to the benefits of her successful litigation and that the QBCC's concerns about potential criticism for making different decisions in other matters were not sufficient grounds for a stay.

The court concluded that the QBCC had a good arguable case on appeal but did not find the circumstances compelling enough to warrant a stay. The court reasoned that the QBCC could continue to make decisions consistent with its interpretation of the statute pending the outcome of the appeal. The court held that the QBCC was not likely to suffer irreparable prejudice if it had to comply with the tribunal's decision immediately. Accordingly, the application for a stay was refused.

In the final orders, the court explicitly refused the application to stay the tribunal's decision, thereby ensuring that the QBCC would need to reconsider the original decision regarding the classification of the building work as ‘residential construction work’.

Orders

Orders of the court

In APL161-21 and APL166-21:

1. The application to stay a decision filed on 14 June 2021 is refused.

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

Dr Egan says that she is entitled to the fruits of the litigation and that a stay should not be granted because immediate compliance with orders is inconvenient for the unsuccessful party. Consideration It may be accepted that the QBCC has a good arguable case on appeal. This is not disputed by Dr Egan. I therefore do not propose to consider this factor further. Grounds of appeal 1 and 4 involve questions of law. The remaining grounds appear to involve questions of fact or questions of mixed law and fact. I start from the basis of the test to be applied in a stay application as set out by the Court of Appeal in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd:[8]Judgments are not to be treated as provisional only; a successful party is entitled to the fruits of its judgment; courts are not disposed to delay the enforcement of court orders; the fundamental justification for delaying enforcement is to ensure that orders which ultimately might be made are fully effective; and the question ultimately is whether the applicant for a stay would be prejudiced irretrievably if the stay were not granted and the appeal ultimately upheld.[8][2008] 2 Qd R 453. Although the ‘fruits of judgment’ in a merits review proceeding are generally of a different nature to those enjoyed in a civil claim, it cannot be doubted that Dr Egan was successful in the proceedings below and is entitled to the benefits of that success. The result of the decision under appeal would appear to be this: the QBCC will be required to reconsider the original decision on the basis that the items of work, the subject of the decision under review, are residential construction work. Dr Egan may, depending upon the decision made, be entitled to the reasonable cost of rectifying any defective work at the property. If the QBCC decides to accept Dr Egan’s claim under the statutory insurance scheme, steps will be required to be undertaken to determine the scope of the necessary rectification works. Of course, there may be a dispute about that scope of works. These are steps which will undoubtedly take time. I do not accept the QBCC’s submission that the decision, if not stayed, will have profound effects upon the statutory insurance scheme. The QBCC says that it ‘would be rightly criticised should it make other decisions in different matters which go against … the reasons (for decision) and (the) interpretation of (residential construction work).’ It is open to the QBCC to make such decisions as it considers appropriate pending the outcome of the appeal. The QBCC is at liberty to make decisions in particular cases consistent with its stated position. I do not accept the submission that the QBCC would be ‘rightly criticised’ for making decisions inconsistent with the decision the subject of the proceedings below. Until such time as the appeal tribunal has determined the issue, the QBCC is at liberty to continue to apply the interpretation of the statute consistently with its position below and in these appeals.

CITATION:	QBCC v Egan; Benton v QBCC & Anor [2021] QCATA 126
PARTIES:	QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(applicant/appellant)
v
ANGELA EGAN
(respondent)
APPLICATION NO/S:	APL161-21
PARTIES:	NIGEL BENTON
(applicant/appellant)
v
ANGELA EGAN QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondents)
APPLICATION NO/S:	APL161-21 and APL166-21
ORIGINATING APPLICATION NO:	GAR360-19
MATTER TYPE:	Appeals
DELIVERED ON:	30 September 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown
ORDERS:	In APL161-21 and APL166-21: 1. The application to stay a decision filed on 14 June 2021 is refused.
CATCHWORDS:	PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where original decision by Queensland Building and Construction Commission to decline insurance cover under statutory insurance scheme – where QBCC decided building work was not ‘residential construction work’ – where tribunal decided work was ‘residential construction work’ – where tribunal remitted matter for reconsideration by the QBCC – where QBCC has appealed the decision – where QBCC applied for stay of decision – where QBCC asserted prejudice if stay not granted – balance of convenience considerations – where stay refused Queensland Building and Construction Commission Act 1991 (Qld), s 67WA. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(1), s145(2), s145(3)(b). Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453. Day v Humphrey [2017] QCA 104. Hessey-Tenney v Jones [2018] QCATA 131. Simonova v Department of Housing and Public Works [2018] QCA 60.
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)