Russell v Queensland Building Services Authority

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

1. 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.

2. 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. 

3. 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.

4. 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.

5. 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.

6. 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…