Russell v Queensland Building Services Authority
[2013] QCAT 329
•1 July 2013
| CITATION: | Russell v Queensland Building Services Authority [2013] QCAT 329 |
| PARTIES: | Cedric Ernest Russell (Applicant) |
| V | |
| Queensland Building Services Authority (Respondents) |
| APPLICATION NUMBER: | GAR067-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 1 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Stay dismissed |
| CATCHWORDS: | STAY – where the granting of a stay would have no utility – where the respondent is entitled under the Queensland Building Services Authority Act 1991 to process the claim under the Home Warranty Insurance Scheme. Queensland Civil and Administrative Tribunal Act 2009 s 22. Deputy Commissioner Ian Stewart v Kennedy [2011] QCATA 254. |
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
On 11 February 2013 Mr Russell filed an application in the Tribunal to review a decision made by the Queensland Building Services Authority in respect of a Scope of Work as a result of defective building work the Authority says was undertaken by the applicant. The work related to the construction of a concrete retaining wall.
In a letter to Mr Russell of 11 January 2013 the Authority says that Mr Russell was informed of the complaint made by a homeowner, Ms Taylor, about the defective building work. The Authority decided to accept Mrs Taylor’s complaint as a claim under the Home Warranty Insurance Scheme and then proceeded to assess the work necessary to rectify the defective work. That work is particularised in the Scope of Work.
In conjunction with the application to review the decision about the scope of work, Mr Russell also applied for a stay of that decision pending the determination of the review application. On 28 March 2013 I refused to grant a stay of the decision. Mr Russell, as he is entitled to do, has asked for reasons for that decision, these are those reasons.
Simply because Mr Russell has filed an application to review the Authority’s decision that does not, of itself, entitle him to a stay. The Tribunal has a discretion to stay the operation of the decision under section 22(2)(b) of the QCAT Act when it is appropriate to do so. Subsection (4) sets out what the Tribunal might have regard to in granting the stay which includes: the interests of any person whose interests might be affected by the making of the order; any submissions made by the decision maker; and, the public interest.
It has also been held that, consistent with general principle the applicant must establish that there is an “arguable case” and the balance of convenience favours a stay.[1]
[1] Deputy Commissioner Ian Stewart v Kennedy [2011] QCATA 254.
The applicant contends that the application should be stayed primarily because the Authority made a decision to issue a direction to rectify in respect of the works which decision, is under review in the Tribunal in proceeding GAR232-11. Further, there has been no failure by the applicant to comply with the direction to rectify and therefore, going to the scope of work at this stage and issuing a notice of potential debt is premature and the Authority should not proceed further.
In its submissions in respect of the application for a stay, the Authority took the unusual step of going straight to the scope of work while the review application is pending because of concern that the retaining wall, some 2.1 metres high, did not have the required factors of safety and stability for its intended application and if there should be any soil movement, for example as a result of continuous wet weather, then it might collapse. Because of these concerns, it had to act urgently under the Insurance Scheme to carry out rectification work.
The applicant is not disadvantaged by the Authority’s decision, as I see it. Firstly, if the applicant is successful in reviewing the decision to issue the direction to rectify and the decision is set aside that will be the end of the matter and the Authority can not recover the cost of the rectification work from the applicant.
Secondly, if the review application is not successful and the decision of the Authority to issue the direction to rectify is confirmed then the Tribunal will review the scope of work. In doing so, the Tribunal will make a decision as to the appropriate extent of the work necessary to insure the retaining wall is rectified. Unfortunately, as a consequence of the decision to accept the claim the applicant would not have not been given an opportunity to carry out the rectification work but, in determining scope and cost that is a matter that can be taken into account in the review application. Irrespective of the direction to rectify the Authority is entitled to respond to the claim under the insurance scheme whether it gives the applicant an opportunity to rectify or not. There are subrogation rights contained in section 77(3) of the QBSA Act.
Having regard to the public interest and the utility of a stay when the review application relates to the extent of the work necessary to carry out the rectification work and stabilise the wall, now that the claim has been approved by the Authority, there is no basis to stay that decision.
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