Queensland Building and Construction Commission v Kitchenplus (Nerang) Pty Ltd
[2014] QCATA 284
•8 October 2014
| CITATION: | Queensland Building and Construction Commission v Kitchenplus (Nerang) Pty Ltd [2014] QCATA 284 |
| PARTIES: | Queensland Building and Construction Commission (Applicant/Appellant) |
| v | |
| Kitchenplus (Nerang) Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL165 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 8 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal is allowed. 2. Paragraph 3 of the decision dated 21 February 2014 is set aside. 3. Kitchenplus (Nerang) Pty Ltd may file and serve any submissions as to the costs of the application by 4:00pm on 24 October 2014. 4. Queensland Building and Construction Commission may file and serve any submissions in reply by 4:00pm on 7 November 2014. 5. The costs of the proceeding will be determined on the papers and without an oral hearing. | ||
| CATCHWORDS: | APPEAL – BUILDING AND CONSTRUCTION – DIRECTION TO RECTIFY - where tribunal set aside direction to rectify - whether proper exercise of discretion – whether adequate reasons for decision – whether grounds for appeal APPEAL – COSTS – where costs given to applicant – where no application for costs – where no submissions on costs – whether grounds for appeal Queensland Civil and Administrative Tribunal House v The King (1936) 55 CLR 499 | ||
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Kitchenplus (Nerang) Pty Ltd renovated a bathroom for Ms Townsend. It completed the work on 1 December 2011. On 30 November 2012, the Queensland Building Services Authority, as the Queensland Building and Construction Commission (‘QBCC’) then was, issued a direction to rectify nine items.
Kitchenplus applied for a review of the direction to rectify. By a decision dated 21 February 2014, the tribunal set aside the direction to rectify and ordered QBCC pay Kitchenplus’ application fee.
QBCC wants to appeal that decision. It says that the appeal is on a question of law only, so leave is not necessary. However, to the extent that its grounds for appeal relate to question of fact, QBCC also seek leave to appeal.
I propose to deal with the grounds of appeal in three broad categories:
a) The learned Member’s decision that it would be unfair to direct rectification was in error.
b) There was no basis for finding that other trades had worked on the bathroom.
c) The learned Member’s decision to order costs was in error.
Kitchenplus has not filed any submissions in response to QBCC’s application for appeal.
Did the learned Member err in finding that the direction to rectify was unfair?
The learned Member set out his findings that the direction to rectify was unfair in the following paragraphs:
[25] In the particular circumstances of this case, it is necessary for the decisionmaker under s 72 to do more than merely note the fact of the dismissal of the applicant‘s civil claim by QCAT, and must also descend into the judgement so as to consider the precise reasons given by the Tribunal for that dismissal, so as to thereby properly inform the exercise of the discretion. Here, the transcript of the judgement in minor civil dispute Q96/2012 reveals that the applicant‘s claim was dismissed because the learned member was satisfied that she should not order that the applicant rectify the outstanding matters and defects revealed in the inspection report dated 23 October 2012, and that it was appropriate to instead order (consistent with the alternate relief sought from QCAT by the respondent/homeowner) that the homeowner should be excused from making the final payment, so as to place the homeowner in sufficient funds to attend to the fixing of any residual problems in the bathroom for herself. Other than to note the fact of the dismissal of QCAT claim Q96/2012, there is no evidence in the respondent‘s reasons for decision dated 9 April 2013 to indicate that the respondent has properly considered the basis for that result.
[26] The fact of those QCAT reasons, when coupled with the conventional time limits for complaints regarding category 2 defects as specified in the rectification policy; as well as the state of the evidence regarding the ability to attribute the category one‘ defects to the applicant leads me to the view that it would be unfair to order any rectification by the applicant of the building works.
In February 2012, Kitchenplus filed a minor civil dispute (‘MCD’) application for payment of the final instalment due under the contract with Ms Townsend. The tribunal dismissed that application. In the course of the reasons for decision, the learned Adjudicator said[1]:
In any event I am satisfied that the defects which were contained in the BSA report in my view would warrant and justify that the final payment owing by the Respondent to the Applicant should be waivered.
…
I am satisfied that I should not order that the Applicant go … and rectify the outstanding defects … and it is more proper that I should order as compensation for the Respondent in having defect problems with her bathroom renovation, that she should be excused and permitted to not be required to make payment of the final invoice to the Applicant … and that the Respondent is relieved from making any payments further to the Applicant particularly in relation to the invoice payment of $2,300 in relation to those bathroom works and she be relieved from making any further payments regarding the bathroom renovations.
[1]Statement George Wright sworn 4 February 2014, Annexure GW1, pages 5 and 6.
QBCC submits that the only evidence of the cost of rectification was Annexure GW2 to Mr Wright’s statement sworn 4 February 2014. It says that, because Mr Wright’s estimate of the rectification cost was $9,570, the learned Member had no evidence to support a finding that the MCD decision placed Ms Townsend in sufficient funds to undertake the rectification.
QBCC’s submission is not supported by the evidence. The material before the MCD tribunal included a quote from Curtis Coast Building Services for $2,510.That quote covered all items in the direction to rectify. It is against that quote, not Mr Wright’s assessment, that the learned Adjudicator dismissed Kitchenplus’ claim. The learned Member was entitled to construe the learned Adjudicator’s comments in the way that he did and I can find no error.
I do not agree that the learned Member’s reference to ‘conventional time limits for complaints regarding category two defects’ suggests a requirement for strict compliance with the provisions of the Rectification Policy. Rather, it suggests that this was one of the many factors the learned Member considered in reaching his decision. The learned Member’s use of the Policy in this way conforms to QBCC’s submission that the Policy should be used as guidance in the exercise of the learned Member’s discretion.
Similarly, I do not agree that the learned Member found that the Policy specified time limits for complaints about category 2 matters.
QBCC correctly observes that the failure to give reasons is an error of law. It also, correctly, submits that the reasons must articulate the essential grounds upon which the decision rests[2]. QBCC submits that it is unable to devine (sic) the essential grounds upon which this part of the learned Member’s decision rests.
[2]Littlejohn v Julia Creek Town and Country Club Inc [2010] QCA 361 at [30] & [31].
The Court of Appeal has also stated ‘that the obligation to provide full reasons varies according to the nature of the case’ and that ‘… Generally speaking, an error of law is discerned when the Court draws the inference that the relevant tribunal has failed in some respect to exercise its powers according to law and a lack of transparency, or obfuscation of the true basis of a decision may make it easier for a court to identify such an error’. [3]
[3]Attorney-General v Kehoe [2001] 2 Qd R 350 at 356; Tully v McIntyre [2001] 2 Qd R 338.
The dispute before the learned Member involved a direction to rectify $10,000 worth of work. There was limited evidence as QBCC did not call Ms Townsend. The hearing took less than two hours. The decision concerned the exercise of the tribunal’s discretion and, at [26], the learned member lists the factors that he considered in the exercise of that discretion. The reasons for decision are short but, in my view, adequate given the nature of the case. I consider that the true basis of the decision is apparent from the learned Member’s reasons even if he did not descend to a detailed examination of the law and evidence.
The ‘uncertainty of the evidence overall’ about the category 1 defects was a factor in the learned Member’s decision but it does not appear to be a decisive factor for the reasons that follow.
I now turn to the QBCC’s general submissions that the learned Member erred in his application of s 72(14) and in his decision that it would be unfair to issue a direction rectify.
Section 72(14) permits the exercise of a discretion. There is no limit to how the decision maker exercises that discretion. The example given in the Act is simply that; one example of how the discretion might be exercised.
The Appeal Tribunal will not interfere with the exercise of a discretion unless it can be shown that the learned Member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters[4]. Just because the Appeal Tribunal might have exercised the discretion differently, that is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion[5].
[4]House v The King (1936) 55 CLR 499, at 504.
[5]Lovell v Lovell (1950) 81 CLR 513.
For the reasons above, I am not satisfied that the learned Member acted on a wrong principle, made a mistake of fact or was influenced by irrelevant matters. I can find no reason to interfere with the learned Member’s decision. Indeed, I consider there were sound reasons for the learned Member to exercise his discretion as he did. Firstly, Ms Townsend’s complaint came some seven months after the work was finished and only after Kitchenplus claimed the balance of the contract price. Secondly, Ms Townsend was compensated for the cost of the defective work in accordance with a quote she obtained. Thirdly, the evidence clearly shows that actual rectification was unlikely because Ms Townsend did not want Kitchenplus back in her home.
Third party intervention
QBCC submits that there was no evidence, or no sufficient evidence, that other trades did work on the bathroom after Kitchenplus completed the job. It says that the evidence of Mr Bugg, principal of Kitchenplus, is ‘far from compelling’.
The only evidence about this issue came from Mr Bugg. He was not cross-examined on this issue. QBCC did not call Ms Townsend to give evidence about this point, even though the same issue was raised in the MCD hearing[6]. The learned Member had Mr Bugg’s uncontradicted evidence. He was entitled to accept it as fact.
[6]Ibid at page 3.
It is true that Mr Bugg’s evidence does not go as far as suggesting external interference with the two major defects; the enclosed hot water system and the waterproofing system but the fact of external interference is something to which the learned Member could turn his mind in the exercise of his discretion.
Costs
Kitchenplus did not ask for its costs of the application. The learned Member did not hear submissions from either party in relation to the issue of costs. That is an error of law and, to this limited extent, the learned Member’s decision should be set aside.
The appeal tribunal may substitute its own decision on the question of costs[7]. Section 100 of the QCAT Act provides, as a starting point, that each party should bear its own costs of a proceeding. The tribunal may award costs if it is in the interests of justice to do so[8]. I will take submissions from the parties about whether the tribunal should order costs.
[7]QCAT Act s 147(3)(b).
[8]Section 103.
Conclusion
The appeal is allowed.
Paragraph 3 of the decision dated 21 February 2014 is set aside.
Kitchenplus (Nerang) Pty Ltd may file and serve any submissions as to the costs of the application by 4:00pm on 24 October 2014.
Queensland Building and Construction Commission may file and serve any submissions in reply by 4:00pm on 7 November 2014.
The costs of the proceeding will be determined on the papers and without an oral hearing.
0
3
0