Queensland Building Services Authority v Robuild Pty Ltd - [2013] QCATA 238

CITATION: Queensland Building Services Authority v Robuild Pty Ltd [2013] QCATA 238

PARTIES: Queensland Building Services Authority
(Appellant)

v

Robuild Pty Ltd
(Respondent)

APPLICATION NUMBER: APL226-13

MATTER TYPE: Appeals

HEARING DATE: 19 August 2013

HEARD AT: Brisbane

DECISION OF: Dr J R Forbes, Member

DELIVERED ON: 23 August 2013

DELIVERED AT: Brisbane

ORDERS MADE:
1. Leave to appeal is refused.

2. The application for costs by Robuild Pty Ltd is reserved for decision by the Tribunal hearing the application to review.

CATCHWORDS:
LEAVE TO APPEAL – Queensland Building Services Authority Act 1991 – order to remedy defective work – builder’s application to review order to remedy – objection to jurisdiction by Authority – whether jurisdiction of Tribunal ousted – whether infringement notice duly served on builder – objection to jurisdiction dismissed – presumption of service rebutted - whether leave to appeal against jurisdictional ruling should be granted – leave refused

Queensland Civil and Administrative Tribunal Act 2009, ss 32, 61, 142, Division 3
Queensland Building Services Authority Act 1991, ss 75, 86, 109A
State Penalties Enforcement Act 1999, s 15
Acts Interpretation Act 1954, ss 4, 39, 39A

Uniform Civil Procedure Rules 1999, r 430

Ken Harrison Homes v Queensland Building Services Authority [2007] CCT QR 125-06

Smith v Queensland Building Services Authority [2010] QCAT 448
Manwin v Queensland Building Services Authority [2007] QDC 298
Lowe v Aspley [2010] QCATA 59
Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277
Sendall v Howe and Anor [2012] QCATA 41
Plowman v Palmer (1914) 18 CLR 339
Central Queensland Speleological Society Incorporated v Central Queensland Cement Pty Ltd (No. 1) [1989] 2 Qd R 512
Cameron v Cole (1944) 68 CLR 571

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bull v Attorney-General (NSW) (1913) 17 CLR 370
Australian Postal Corporation v Forgie [2003] FCAFC 223
Ballada Pty Ltd v North Point Brisbane & Anor [2013] QCATA 184
Peter Boyd Enterprises Pty Ltd v QR Concrete Pty Ltd [2012] QDC 324

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Orchard v Orchard (1972) 3 SASR 89
Re Prowse; Ex parte the Debtor (1981) 39 ALR 639
Williams v Official Trustee in Bankruptcy (1994) 122 ALR 585

Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257
Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359
Fox v Percy (2003) 214 CLR 118
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
In Re W (an infant) [1971] AC 682
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
[1]This case depends upon a special statute of limitations in section 86 of the Queensland Building…

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: [2013] QCATA 238
Decision Date: 23 August 2013

CaseChat Overview and Summary

In this case, the Queensland Building Services Authority (QBS) sought to enforce an order to remedy defective work against Robuild Pty Ltd (Robuild), a builder. The dispute arose from the authority's decision to issue an infringement notice and subsequently an order to remedy the defective work under the Queensland Building Services Authority Act 1991. Robuild contested the authority's actions and applied to the Queensland Civil and Administrative Tribunal (QCAT) to review the order to remedy. QBS objected to QCAT's jurisdiction, arguing that the presumption of service of the infringement notice on Robuild was not rebutted, and the Tribunal's jurisdiction was thus ousted. Subsequently, Robuild applied for leave to appeal QCAT's ruling that the presumption of service was not rebutted and that QCAT had jurisdiction to hear the review application.

The primary legal issue before the court was whether QCAT had jurisdiction to hear Robuild's application to review the order to remedy defective work. This hinged on whether the presumption of service of the infringement notice on Robuild was rebutted, and if so, whether this affected QCAT's jurisdiction. The court also had to determine whether leave to appeal QCAT's jurisdictional ruling should be granted. The court examined the evidence and arguments presented by both parties, focusing on the presumption of service and its impact on QCAT's jurisdiction.

The court found that the presumption of service of the infringement notice on Robuild was not rebutted, confirming that QCAT had jurisdiction to hear the application to review the order to remedy. The court held that the presumption of service was not displaced by any evidence presented by Robuild, and thus QCAT's jurisdiction was not ousted. The court further found that the application for leave to appeal QCAT's jurisdictional ruling should be refused, as there was no compelling reason to allow the appeal. The presumption of service was not rebutted, and QCAT's decision to hear the review application was correct.

The court's decision resulted in two main orders. Firstly, leave to appeal the jurisdictional ruling was refused, meaning that Robuild's appeal against QCAT's determination on jurisdiction was not successful. Secondly, the application for costs by Robuild was reserved for decision by the Tribunal hearing the review application, indicating that the costs issue would be addressed at a later stage in the proceedings.

Orders

Orders of the court

1. Leave to appeal is refused.

2. The application for costs by Robuild Pty Ltd is reserved for decision by the Tribunal hearing the application to review.

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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PARTIES:	Queensland Building Services Authority (Appellant)
v
Robuild Pty Ltd (Respondent)