Queensland Building Services Authority v Macdonald - [2012] QCATA 237

CITATION:

Queensland Building Services Authority v Macdonald [2012] QCATA 237

PARTIES:	Queensland Building Services Authority
v
Jonathon Stewart Macdonald

APPLICATION NUMBER:

APL201-12

MATTER TYPE:

Appeals

HEARING DATE:

12 November 2012

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe, Senior Member
David Paratz, Member

DELIVERED ON:

22 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

[1] Leave to appeal granted.

[2] The Appeal is upheld as to Application GAR292-11.

[3] Application GAR292-11 is struck out.

[4] The Appeal as to Application GAR019-12 is dismissed.

CATCHWORDS:

APPLICATION TO STRIKE OUT – where direction to rectify – where application to review out of time – where application refused on grounds that direction not valid – whether refusal a proper exercise of tribunal discretion – where decision as to termination of contract – where previous proceedings settled – whether builder estopped from arguing contract had not been terminated

Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(ii)

Queensland Building Services Authority Act 1991, s 86(2)

Commissioner of Taxation v Day (2007) 243 ALR 448

Smith v Queensland Building Services Authority [2010] QCAT 448
Cornpig vQueensland Building Services Authority [2011] QCAT 255
Orenshaw v Queensland Building Services Authority [2012] QCAT 79

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr B Turnbull, HWL Ebsworth
RESPONDENT:	Mr Macdonald in person

REASONS FOR DECISION

In August 2007, Mr Macdonald agreed to build a house for Mr Perkins and Ms Poppenk at 24 George Street, Helidon, Queensland. By September 2008, the parties were in dispute.
Mr Perkins and Ms Poppenk gave Mr Macdonald a notice to terminate the contract on 19 August 2008.
On 19 September 2008, Mr Macdonald filed an application in the Commercial and Consumer Tribunal seeking, among other things, an order that the contract had not been terminated. Mr Perkins and Ms Poppenk filed a response to the CCT claim, asserting that they had terminated the contract and claiming damages.
In December 2008, the Authority wrote to Mr Macdonald advising that it considered the contract had been terminated. The Authority invited Mr Macdonald to provide a written response.
On 24 November 2009, the CCT proceeding came on for a hearing and the parties agreed to a consent order in the following terms:
(1)The applicant’s claim is dismissed.
(2)The respondent’s counterclaim is dismissed.
(3)The applicant will pay the respondent’s costs in the proceeding in the sum of eighteen thousand dollars ($18,000.00) by 4pm on 18 December 2009.
The Authority issued a direction to rectify on 8 April 2010. Mr Macdonald did not comply with the direction to rectify. On 23 September 2011, Mr Macdonald filed an application (GAR292-11) to review that direction. He also filed an application to extend the time in which to bring that application.
By letter of 15 December 2011, the Authority determined that the contract between Mr Macdonald and Mr Perkins and Ms Poppenk had been terminated. Mr Macdonald filed an application to review that decision on 10 January 2012 (GAR019-12).
The Authority filed applications to strike out both of the applications which Mr…

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.

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Details

Case: [2012] QCATA 237
Decision Date: 22 November 2012

CaseChat Overview and Summary

The Queensland Building Services Authority sought to have a decision of the Building Services Tribunal struck out. The Tribunal had previously issued a direction to the respondent to rectify defects in a building. The respondent, Macdonald, sought to review the decision but did so outside the time limit. The Tribunal refused to review the decision on the grounds that the original direction was not valid. Macdonald sought to appeal this decision, arguing that the Tribunal's refusal was not a proper exercise of its discretion. Additionally, Macdonald argued that the builder was estopped from claiming the contract had not been terminated given that the previous proceedings had been settled.

The court considered whether the Tribunal had exercised its discretion properly in refusing to review the decision. The court also considered whether the builder was estopped from arguing that the contract had not been terminated. The court found that the Tribunal had exercised its discretion properly and that the builder was estopped from making such an argument. The court noted that the Tribunal had the power to refuse to review a decision and that it had exercised this power in a reasonable manner. The court also found that the builder was estopped from arguing that the contract had not been terminated given that the previous proceedings had been settled.

The appeal was partially upheld. The court found that the Tribunal's refusal to review the decision was a proper exercise of its discretion and that the builder was estopped from arguing that the contract had not been terminated. However, the court found that the application to review the decision was out of time and therefore could not be considered. The appeal was upheld as to the application to strike out the review application and the application was struck out. The appeal was dismissed as to the application to review the original direction.

The court ordered that leave to appeal be granted, that the appeal be upheld as to the application to strike out the review application, that the review application be struck out, and that the appeal be dismissed as to the application to review the original direction.

Orders

Orders of the court

[1] Leave to appeal granted.

[2] The Appeal is upheld as to Application GAR292-11.

[3] Application GAR292-11 is struck out.

[4] The Appeal as to Application GAR019-12 is dismissed.

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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