Queensland Building and Construction Commission v Crocker

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Queensland Building and Construction Commission v Crocker [2018] QCATA 194

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(applicant/appellant)
v

LEE ANTHONY CROCKER

(respondent)

APPLICATION NO/S:

APL329-17; APL330-17; APL331-17

ORIGINATING APPLICATION NO/S:

GAR232-16; GAR234-16; GAR235-16

MATTER TYPE:

Appeals

DELIVERED ON:

7 December 2018

HEARING DATE:

30 August 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member King-Scott

ORDERS:

1.   Leave to appeal is granted.

2.   Appeals allowed.

3.   Applications to extend time are dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where payment made on a claim under the insurance scheme – where recovery sought from former director of the company – whether director able to review decision to make payment – whether director able to review decisions anterior to the making of the payment – whether time for seeking review should be extended.

Judicial Review Act 1991 (Qld), s 20
Queensland Building and Construction Act 1991 (Qld),
s 71, s 86F, s 87, s 111C
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)

Cardillo v Queensland Building Services Authority [2011] QCAT 574

Clarke v Japan Machines (Aust) Pty Ltd [1984] 1 Qd R 404
Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115

Crisp v Queensland Building Services Authority [2010] QCAT 263
Harrison & Anor v Meehan [2016] QCATA 197
Lange v Queensland Building Services Authority [2012] 2 Qd R 457

Mahony v Queensland Building Services Authority [2014] HCASL 93 (13 May 2014)

Mahony v Queensland Building Services Authority [2013] QCA 323
Namour v Queensland Building Services Authority [2015] 2 Qd R 1

Queensland Building and Construction Commission v Lifetime Securities (Australia) Pty Ltd [2014] QCA 161

Queensland Building and Construction Commission v Turcinovic [2018] 1 Qd R 156

Queensland Building and Construction Commission v Watkins [2014] QCA 172
Samimi v Queensland Building and Construction Commission [2015] QCA 106

Turner v Queensland Building Services Authority [1999] QBT 66

APPEARANCES & REPRESENTATION:

Applicant:

N Andreatidis QC, with R De Luchi, instructed by Queensland Building and Construction Commission

Respondent:

N M Cooke QC, instructed by Streten Masons Lawyers

REASONS FOR DECISION

Introduction

  1. The Queensland Building and Construction Commission (‘Commission’) is the statutory regulator of the building industry pursuant to the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC AcT’). Part 5 of the QBCC Act establishes a statutory insurance scheme known as the Queensland Home Warranty Scheme which is regulated and administered by the Commission. Under the scheme a building contractor pays an insurance premium to the Commission before residential construction work commences. The policy of insurance inures for the benefit of the consumer, in most cases the homeowner. If the work is not completed or is defective, the homeowner may make a claim under the policy. If the Commission makes a payment on the claim under the insurance scheme it then may recover the amount of that payment, as a debt, against the building contractor and, if the building contractor is a company,…

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Details
Case
[2018] QCATA 194
Decision Date

CaseChat Overview and Summary

In the case of Queensland Building and Construction Commission v Crocker, the Court was asked to consider whether the Respondent, a former director of Statewide Residential Building Inspections & Maintenance Services Pty Ltd, could review the decisions made by the Commission regarding payments made under the statutory insurance scheme. The dispute arose from the Commission's decision to recover the insurance payments from the Respondent on the basis of his status as a former director of Statewide. The central issues were whether the Respondent had standing to review the decisions under the Queensland Building and Construction Commission Act 1996 (QBCC Act) and whether the time for seeking review could be extended.

The Court found that the Respondent had standing to review the scope of works decisions but not the decisions under section 71 of the QBCC Act, which deals with the recovery of payments. The Court relied on previous decisions, including Namour v Queensland Building Services Authority, Turner v Queensland Building Services Authority, and Crisp v Queensland Building Services Authority, to determine that the Respondent, as a former director, was an "affected person" with standing to review scope of works decisions. However, the Court held that there was no jurisdiction to review the decisions related to the recovery of the insurance payments. The Court also found that there was insufficient evidence to show that the Respondent had been properly notified of the scope of works decisions, which could have impacted the timeliness of his review application.

The Court granted leave to appeal and allowed the appeals, dismissing the applications to extend time. This decision underscores the importance of proper notification to all relevant parties in administrative proceedings and the specific jurisdictional limits in reviewing decisions under the QBCC Act.

Orders

Orders of the court

1. Leave to appeal is granted.

2. Appeals allowed.

3. Applications to extend time are dismissed.

Background

Background to the litigation

The Respondent filed an application to file and rely upon a further affidavit sworn on 22 June 2018. The affidavit adduces new evidence which it is argued was not available to the Respondent at the time of the initial hearing by the Tribunal. The Commission opposes the application. With the acquiescence of both parties, we reserved our decision on whether the new evidence should be admitted.Background The Respondent was a director of Statewide Residential Building Inspections & Maintenance Services Pty Ltd (‘Statewide’). Statewide was formerly known as Build Restore Pty Ltd and Kitchen 2 Pty Ltd between 2004 and 18 January 2013. Statewide was the builder in respect of the three domestic building contracts at three different locations, namely, Norman Park, Ashgrove and Toowong. It is conceded that the construction work at the three sites occurred whilst the Respondent was a director of Statewide. Statewide went into liquidation on 12 December 2013. A claim was made in respect of each of the three sites for non-completion of work under the statutory insurance scheme. The Tribunal below found that the Commission took the following steps in relation to the three sites: –Norman Park property(a) on 2 April 2014 the Commission issued a scope of works decision to the liquidator of Statewide. However, whilst the scope of works decision was before the Tribunal below, it is unclear whether it was in fact served on the liquidator; and(b) on 8 June 2014, the Commission granted an indemnity concerning the Norman Park property in the sum of $123,267.83.Toowong property(a) on 3 December 2014, the Commission issued a scope of works decision to the liquidator of Statewide; and(b) on 15 December 2014, the Commission granted an indemnity concerning the property in the sum of $200,000.Ashgrove property(a) on 24 September 2014, the Commission issued a scope of works decision to the liquidator of Statewide; and(b) on 27 January 2015, the Commission granted of indemnity concerning the Ashgrove property in the sum of $200,000. By letter dated 27 July 2016, the Commission made demand on the Respondent for payment of the sum of $528,267.83, being the total paid on the insurance claims, by reason of the fact that he was a director of Statewide at all relevant times: see s 111C(3) and (6) of QBCC Act, reproduced below. The Respondent says he did not receive any notification of the insurance payments until receipt of the letter of 27 July 2016 and did not have prior notice of the scope of works decisions or of the decisions to grant an indemnity. It appears that all prior communications of the Commission's decisions were sent to Mr Dean Crocker, to Statewide and, after Statewide went into liquidation, to the liquidators. On 9 September 2016 the Respondent filed applications to review with applications to extend time in each case. On 8 March 2017 an amended application was filed to review not only the decision to grant the insurance claims but also each of the scope of works decisions.Legislation

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Part 5 of the QBCC Act sets out the provisions dealing with, inter alia, the establishment and administration of the statutory insurance scheme.Section 71 (1) provides:If the commission makes any payment on a claim under the statutory insurance scheme, the commission may recover the amount of the payment, as a debt, from the building contractor by whom the relevant residential construction work was, or was to be, carried out or any other person through whose fault the claim arose.Section 111C provides, relevantly:LIABILITY OF DIRECTORS FOR AMOUNTS…(3) This section also applies if a company owes the commission an amount because of a payment made by the commission on a claim under the insurance scheme.…(6) If this section applies because of subsection (3), the liability to pay the amount attaches to– (a) each individual who was a director of the company when building work the subject of the claim was, or was to have been, carried out; and(b) each individual who was a director of the company when the payment was made by the commission.…Section 87 provides:A person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.However, s 86F provides, relevantly:(1) The following decisions of the commission under this Act are not reviewable decisions under this subdivision–(a) a decision recover an amount under section 71;…(c) a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision;The Tribunal's decision In the decision below, it was noted that while it was accepted by the Commission that potentially the tribunal has jurisdiction to review scope of works decisions, it was submitted that the Respondent had no standing to do so under section 87 of the QBCC Act as he was not an "affected person”. However, by reference to the decisions of Namour v Queensland Building Services Authority,[6] Turner v Queensland Building Services Authority (‘Turner’),[7] and Crisp v Queensland Building Services Authority (‘Crisp’),[8] the learned Member determined that the Respondent did have standing as an "affected person”. On the other hand, it was found that there was no jurisdiction to review decisions made under s 71 of the QBCC Act.[6][2015] 2 Qd R 1; see, in particular, the comments of Fraser JA.[7][1999] QBT 66.[8][2010] QCAT 263. In terms of notice of the scope of works to be undertaken pursuant to s 86F(1)(c) of the QBCC Act, it was also noted in the decision below that while there was evidence of notice to the company in liquidation and to the then director, Mr Dean Crocker, no evidence was provided to show that notice was given to the Respondent as a previous director of the company. The Respondent ceased to be a director of the company on 11 January 2013. In that context, it was argued that the 28 days within which review could be sought had not commenced to run. The learned Member declined to rely on any form of inferred knowledge on the part of the Respondent. However, as is noted below, there is a separate question of whether there was a requirement to give notice of a decision about the scope of works to be undertaken to a former director of the company.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.