Queensland Building Services Authority v Lazinski

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building Services Authority v Lazinski [2009] QDC 381

PARTIES:

QUEENSLAND BUILDING SERVICES AUTHORITY

Appellant

AND

JAN LAZINSKI

Respondent

FILE NO/S:

BD2985/09

DIVISION:

PROCEEDING:

Application for leave to appeal

ORIGINATING COURT:

Commercial and Consumer Tribunal

DELIVERED ON:

9 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2009

JUDGE:

McGill DCJ

ORDER:

Leave to appeal refused with costs.

CATCHWORDS:

INFERIOR TRIBUNALS – Commercial and Consumer Tribunal – appeal – whether appropriate to grant leave to appeal – relevant considerations

Commercial and Consumer Tribunal Act 2003 s 100(1)

Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation Ltd [1998] QCA 351 – cited.
Clements v Flower [2005] QDC 50 – cited.
Poiner v Quirk [2007] QDC 299 – followed.
R v His Honour Judge Given; ex parte Builders Registration Board of Queensland [1985] 2 Qd R 32 – cited.
Walker v Davelin Homes Pty Ltd [2003] QCA 565 – applied.

COUNSEL:

M. D. Evans for the appellant

M. Lazinski (solicitor) for the respondent

SOLICITORS:

1. This is an application for leave to appeal from a decision of the Commercial and Consumer Tribunal. On 23 September 2009 that Tribunal ordered that a decision of the appellant to issue to the respondent a direction to rectify defective building work pursuant to s 72 of the Queensland Building Services Authority Act be set aside and that the matter be remitted to the appellant to reconsider whether or not to issue a direction to rectify to the respondent or any other person.

1. The proceeding arose because the appellant had issued to the respondent a direction to rectify under s 72 of that Act and the respondent before me had appealed to the Tribunal against that direction. The Tribunal in those circumstances under s 104 of the Commercial and Consumer Tribunal Act 2003 was entitled to either confirm the decision then being reviewed, or set aside the decision and substitute another decision, or set aside the decision and return the matter to the state agency that made the decision with directions that the Tribunal considers appropriate.

1. The particular form of the order is a little curious in that on the face of it, it will be consistent with the order of the Tribunal for the appellant to issue a fresh direction to rectify to the respondent.  The form of the direction suggests that it does not involve any final conclusion as to whether or not the respondent can be the subject of a direction to rectify.

1. Paragraph 49 of the reasons of the Tribunal explains this a little.  In that paragraph the Tribunal Member said:

“I propose to return the matter to the authority for it to determine whether or not the respondent was in fact carrying on a business involving carrying out building work, and in the circumstances, whether to issue a fresh direction to rectify to the respondent.  Any such direction should be limited to rectifying the leaking shower and the damage to the vanity unit caused by the leak.”

1. The…