Queensland Building Services Authority v Macdonald
[2012] QCATA 237
•22 November 2012
| 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 |
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 Macdonald had filed. The learned Member refused the Authority’s applications. The Authority has filed an application for leave to appeal the learned Member’s decisions.
Because this is an appeal from a decision that is not the Tribunal’s final decision in the proceeding, leave is necessary[1]. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
[1] Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(ii).
The direction to rectify (GAR292-11)
It is not disputed that the application to review was filed more than 28 days after the direction to rectify was served on Mr Macdonald.
Section 86(2) of the Queensland Building Services Authority Act 1991 provides that:
“86(2) The tribunal must not review the following decisions of the authority –
(b) a decision to direct rectification or completion of tribunal work by a building contractor and any finding by the authority in arriving at the decision if –
(i) 28 days have elapsed from the date the direction to rectify or complete 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 learned member noted at [11] of her decision[2] that:
“there is an established body of law to the effect that a decision identified in section 82(2)(b) of the QBSA Act, being a decision to direct rectification where the application is filed outside the 28 day stipulated period and the other requirements in section 82 are met the tribunal must not review such a decision.” (Note – reference should be to s 86)[3]
[2] Decision delivered on 31 May 2012.
[3]Smith v QBSA [2010] QCAT448 at [30]; Cornpig v QBSA [2011] QCAT 255 at [12]; Orenshaw v QBSA [2012] QCAT 79 at [9].
The Authority’s complaint about the learned Member’s decision is in these words, also in [11]:
“That provision applies where the direction to rectify is valid. Here the validity of the direction to rectify is under attack by Mr. Macdonald.”
The question as to whether a direction is valid is the very question that a review would consider. It would be circular for the Tribunal to first form a view as to whether a direction is valid in order to then proceed to consider the same point.
The Tribunal is bound by any relevant legislation. Where there is uncertainty as to its jurisdiction imposed by legislation, then the Tribunal may explore that issue and form its own conclusions as to the extent of its authority. However, where the legislation is clear and unambiguous, then the Tribunal cannot adopt jurisdiction.
The application by Mr Macdonald to review the direction to rectify is out of time. The Tribunal is bound by the provisions of s 86(2) of the QBSA Act which state that the tribunal must not review such a decision out of time.
Accordingly, leave is granted to appeal and the appeal as to application GAR292-11 is upheld, and we will order that application GAR292-11 be struck out.
Termination of the contract (GAR019-12)
The Authority sent Mr Macdonald a letter dated 15 December 2011 advising him that it determined that the contract had been validly terminated upon the contractor’s default.
The letter went on to say that the Authority may recover from Mr Macdonald any payment on a claim which had been made under the insurance provisions of the QBSA Act.
Mr Macdonald then filed his application on 10 January 2012 seeking an order “to dismiss any notice of termination issued to the applicant on the 15/12/11 by BSA”.
The learned Member found at [9] of her decision that:
“The QBSA submits that McDonald has been vexatious, alluding to his repetitious allegations of the same issues. On the face of the consent orders, he settled his action with the homeowners without the issue of contractual termination being expressly determined. The fact that the QBSA issued a determination itself lends some support to the suggestion that clarity was needed in whether and when the contract was determined. It is that determination of which Mr. Macdonald now seeks review. That determination has not yet been reviewed and is reviewable in QCAT. The action is not vexatious, nor is it an abuse of process.”
The Authority had submitted, in [10] of its submissions dated 8 March 2012 that:
“the effect of the consent Order (in the CCT) was to determine, in a final way, the question of whether the Homeowners had properly terminated the Contract.”
The conclusion from that submission is put by the Authority at [22] as being that:
“It follows that the “dismissal” of the Applicant’s Statement of Claim meant that the tribunal necessarily dismissed the Applicant’s request for the Order that the termination of the Contract by the homeowners was ineffective. It is logically apparent that if the Tribunal dismissed such a request (of the parties) then the Tribunal determined (by consent and reflected in the Consent Order) that the termination by the homeowners was effective”.
This line of argument relies on a great deal of assumption, and is artificial. The consent order is very brief and does not disclose in any way the reasoning behind it. The parties may have had any number of reasons for agreeing to the orders, which may concern completely unrelated commercial or personal considerations.
The consent order does nothing more than dispose of the action in that Tribunal by dismissing the claim and counter-claim. We do not accept that an issue estoppel would necessarily arise which would prevent the issues being heard again in another forum.
The comments of Spender J in Commissioner of Taxation v Day (2007) 243 ALR 448 at page 453 are straightforward that:
“A consent judgment may give rise to issue estoppel, but it does so only in respect of the fundamental issue or issues which were clearly determined by the judgment”
and that:
“Because the judgment was entered by consent, there is some difficulty in ascertaining what the judgment necessarily decided.”
The consent orders in the CCT did not clearly determine any fundamental issue in the proceeding.
The Authority argues that the application by Mr Macdonald is vexatious as being “productive of serious and unjustified trouble and harassment”. The Authority also argues that the application is an abuse of process because Mr Macdonald is trying to re-litigate a matter.
We do not accept the Authority’s argument. In the absence of any estoppel, Mr Macdonald is entitled under s 86(1)(i) of the QBSA Act to have the decision reviewed. We agree with this finding of the learned Member.
A question does arise however as to the utility of Mr Macdonald’s application.
If it is Mr Macdonald’s intention in these proceedings to avoid a possible claim by the Authority for repayment of $197,633.08 paid out under the insurance provisions, his action is premature.
At the time of Mr Macdonald making his application, the Authority had not, and still has not, made any claim upon him under the insurance provisions.
Accordingly, leave to appeal GAR019-12 is granted, and the appeal as to application GAR019-12 is dismissed.
Orders
The appeal is upheld as to application GAR292-11
Application GAR292-11 is struck out.
The appeal as to application GAR019-12 is dismissed.
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