Sanders v Queensland Building and Construction Commission
[2014] QCAT 192
| CITATION: | Sanders v Queensland Building and Construction Commission [2014] QCAT 192 |
| PARTIES: | Fay Muriel Sanders (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR219-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member J Gordon |
| DELIVERED ON: | 14 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondent’s application to strike out the application for review because of section 86(2)(c) of the Queensland Building and Construction Commission Act 1991 is refused. 2. The application for review and the application for an extension of the time to bring it, will be listed for a directions hearing. |
| CATCHWORDS: | Time limits in review applications about scope of works under the statutory insurance scheme – whether the strict 28 day time limit in section 86(2)(c) of the Queensland Building and Construction Commission Act 1991 (Qld) applies to house owners as well as building contractors Queensland Building and Construction Commission Act 1991 (Qld) ss 86(1)(g), 86(2)(c) Orenshaw v Queensland Building Services Authority [2012] QCAT 79 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
This is an application by the Queensland Building and Construction Commission[1] (in this decision called “the Commission”) to strike out the review application currently before the tribunal and brought by the Applicant, Fay Muriel Sanders.
[1]Formerly the Queensland Building Services Authority.
The grounds of the strike out application are that the application for review was made more than 28 days after service of the scope of works decision which is the subject of the review, and therefore by section 86(2)(c) of the Queensland Building and Construction Commission Act 1991 (Qld), the tribunal has no jurisdiction to hear it.
Section 86(2)(c) provides that the tribunal cannot hear this type of application for review if it is made outside the 28 day time limit. The Applicant is a house owner and the resolution of this strike out application turns on whether section 86(2)(c) applies to house owners as well as to building contractors.
The application for review
The scope of works was prepared by the Commission under the Home Warranty Insurance Scheme and was dated 8 March 2013. It listed the work required to rectify defective work carried out at the Applicant’s premises by a licensed building contractor.
The scope of works was attached to a letter to the Applicant dated 21 March 2013. This explained that the scope of works had been provided to two licensed contractors who would provide quotes to do the work. A letter to the Applicant dated 30 May 2013 then said that two quotes had been received, and one of them had been approved. It was then up to the Applicant to engage the contractor concerned to do the remedial work.
On 10 June 2013 the Applicant wrote to the Commission stating that she disagreed with the choice of contractor and also with the scope of works. She said that she was going to seek a review of the scope of works in the tribunal and that her deadline for doing so expired on 28 June 2013. She said that unless she heard from the Commission by then she would be lodging the papers in the tribunal. In her submissions on this matter she says she did not receive an answer to this letter.
The Applicant then applied to the tribunal to review the scope of works. This application was originally stamped as received by the tribunal on 28 June 2013, but then this was crossed out and it was stamped as received on 1 July 2013. She stated in the application that:-
a) not all defects were included in the scope of works;
b) she could not afford to satisfy the condition in the scope of works that she must provide an engineer’s design and certified footing system for the house before any works could proceed;
c) a contractor had been chosen by the Commission to carry out the remedial work but that contractor was himself responsible for some of the defects; she preferred to use a builder of her own choice.
At the same time as making the application for review, the Applicant applied for an extension of time for the tribunal to hear it. She explained that the decision was 30 May 2013 and so the time started from that date. She said that she had made a mistake on the form she originally submitted to the tribunal and she had to correct this, so she was now out of time. This seems to explain the two different date stamps on the application.
On 9 August 2013 the Commission asked for a directions hearing saying that it was not clear from the application for review exactly what decision the Applicant was seeking to have reviewed. The Commission said that it appeared to be either the decision about the scope of works which was dated 8 March 2013 and served on the Applicant by letter dated 21 March 2013, or the decisions recited in the letter of 30 May 2013.
A directions hearing was held on 19 September 2013. The Commission says that at that hearing it was clarified by the Applicant that she was seeking a review of the decision about the scope of works sent by letter dated 21 March 2013. Although in her submissions the Applicant confirms that there was a discussion about this at the directions hearing, there is nothing about this on the order made that day.
In this strike out application the Commission says that:-
a) The application is for a review of the scope of works dated 8 March 2013.
b) This was served on the Applicant by letter dated 21 March 2013 and it should be taken to have been received in the ordinary course of post on 25 March 2013.[2]
c) By section 86(2)(c) of the Queensland Building and Construction Commission Act 1991 such an application must be made within 28 days.
d) The application was not made until 1 July 2013.
e) The tribunal cannot extend the period of 28 days in section 86(2)(c).
[2]Acts Interpretation Act 1954 (Qld), under the deeming provisions of section 39A(1).
The relevant parts of section 86 of the QBCC Act provide:-
86 Reviewable decisions
(1) The tribunal may review the following decisions of the commission—
…
(g) a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work;
…
(2) The tribunal must not review the following decisions of the commission—
…
(c) a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision.
Quite apart from the time limit in section 86(2)(c), by section 33(3) of the Queensland Civil and Administrative Tribunal Act 2009 any application for review must be brought within 28 days of the relevant day. Relevant day is the day of notification of the decision or of written reasons for giving it.[3] If an applicant is out of time under section 33(3) she can apply for an extension of time under section 61 of the QCAT Act.
[3]Reference should be made to section 33 for the precise terms of this provision.
The Commission does not seek to strike out the application because it fails to comply with section 33(3). The strike out application is based solely on section 86(2)(c). The Applicant has applied for an extension of the 28 time limit and if section 86(2)(c) does not apply to her this must be regarded as an application to extend the time limit in section 33(3).
For the purpose of this strike out application, I shall assume that the Commission is correct that the application for review is of the scope of works dated 8 March 2013 and that it is deemed to have been received by 25 March 2013. I shall limit my consideration of this strike out application to the effect of section 86(2)(c). I am justified in approaching this strike out application in this way because it is on that basis that the strike out is sought, and no submissions have been made by either side about section 33(3).
Therefore my decision now on the strike out application does not of itself limit the application for review to the scope of works dated 8 March 2013. Nor does it conclude the Applicant’s application for extension of the 28 day time limit.
The question is whether section 86(2)(c) applies only to applications for review brought by building contractors, or whether it applies also to applications brought by house owners.
Previous decisions
In Orenshaw v Queensland Building Services Authority [2012] QCAT 79, an application to review a scope of works brought by a house owner outside the 28 day time limit was struck out because of section 86(2)(c). It does not appear from the reported decision whether the point was argued that section 86(2)(c) does not apply to house owners. It appears that the learned member assumed that it did.[4]
[4]The same assumption was made by the same member, obiter, in Omae v Queensland Building Services Authority [2012] QCAT 80.
A contrary view was expressed in the Commercial and Consumer Tribunal in Kirtley, AC v Queensland Building Services Authority [2007] QCCTB 157. At that time applications for review went to the Commercial and Consumer Tribunal under the Commercial and Consumer Tribunal Act 2003 (Qld). Under section 102 of the Act, there was a 28 day time limit for all review applications before the tribunal. Because there was no evidence before the tribunal that the building contractor had been served with the scope of works the learned member decided that it was unnecessary to decide whether section 86(2)(c) applied to a house owner. So it was the time limit under section 102 which was considered in that case.
But when discussing section 86(2)(c) in passing, the learned member stated at [28]:-
The provision makes no reference to an application for review by a homeowner. Read literally, the provision would prevent a homeowner who applied within time from having his application to review heard because of failure by the contractor to apply within time. The better view may be that the provision has no effect on an application by a homeowner but only applies to prevent the Tribunal hearing a review application by a builder who has failed to apply within time. On that view, the provision would not affect an application by a homeowner made within time nor prevent consideration of an extension of time for a homeowner who applied out of time.
In Bourne v Queensland Building Services Authority [2012] QCATA 102, Mr John Jerrard QC on appeal said at [63]:-
I agree with the obiter comments made in Kirtley v QBSA [2007] QCCTB 157 at [28], that the better view is that s 86(2)(c) has effect on a builder who has failed to apply in time to review a scope of work, and does not apply to an application by a home-owner, whose right to apply has been given in s 86(1)(g).
These comments were themselves only in passing and not required for the decision reached in that appeal, and therefore obiter.
Considerations
If the 28 day time limit in section 86(2)(c) applies to house owners, then this application for review must be struck out if it is out of time. This is because it has been authoritatively held that the tribunal has no jurisdiction to extend the time limits in section 86(2). The position is different with the 28 day time limit in section 33(3) of the QCAT Act which can be extended in a suitable case.
A strictly logical reading of section 86(2)(c) means that for it to apply, three things must be true:-
a) The decision about the scope of works has been served on the building contractor.
b) 28 days have elapsed since the decision was served on the building contractor.
c) The building contractor has not applied to the tribunal for a review of the decision within those 28 days.
The reference to the “building contractor” in these provisions is clearly (from the context of the provisions) to the licensed building contractor whose work is considered to be defective or incomplete.
The Commission have provided no direct evidence that the decision about the scope of works was served on the building contractor. However, this must have happened because the building contractor provided a quote for the work. This quote was available by 30 May 2013 so condition (a) must have been satisfied by that time.
Clearly condition (b) is also satisfied.
Condition (c) is also satisfied. There was no application to the tribunal by the building contractor.
On the face of it therefore, section 86(2)(c) is engaged, and the tribunal has no jurisdiction to hear the application for review brought by this Applicant.
The problem with this approach to section 86(2)(c) is that even if the Applicant had brought an application in time, all three conditions would still be satisfied. If section 86(2)(c) should be read strictly and literally therefore, it would mean that in respect of every scope of works under the statutory insurance scheme:-
a)if the building contractor does not apply for a review within the 28 day time period, the house owner is not able to do so because section 86(2)(c) would be engaged; and
b)if the building contractor does not apply for a review within the 28 days time period, the house owner would also be able to apply for a review because section 86(2)(c) would not be engaged.
This is clearly not the intention of the provisions, so this indicates that the strictly logical construction of section 86(2)(c) is inappropriate.
The Commission argue for a construction of section 86(2)(c) which has the result that the 28 day time limit applies equally to a building contractor and to a house owner. In support of this approach, the Commission make a number of good points in its submissions about the need for finality in its decisions.
The points lose their strength however when it is remembered that section 33(3) of the QCAT Act applies a general 28 day time limit to all review applications. This means that if section 86(2)(c) does not apply to a house owner, the 28 day time limit in section 33(3) of the QCAT Act applies instead.
And the difficulty with accepting the Commission’s proposition is that it would be necessary to change condition (c) to read if neither the home owner or the building contractor had applied to the tribunal within those 28 days. In the same way it would be necessary to read “home owner” into conditions (a) and (b). Such a construction goes well beyond applying a construction which corrects an ambiguity in the meaning of section 86(2)(c).
A third possible construction of section 86(2)(c), which I think is the favourable one, is that it only applies to building contractors. This construction is available because conditions (a) and (b) refer to building contractors only and so condition (c) can be read the same way. This avoids the absurdity of the strictly logical construction of the sub-section.
It seems to me therefore that the correct position is that:-
a) A building contractor who wishes to bring an application for review of a scope of works must do so within 28 days of it being served upon him, because of section 86(2)(c). This period cannot be extended.
b) A house owner who wishes to bring an application for review of a scope of works must do so within 28 days of the time limit under section 33(3) of the QCAT Act. This period could be extended in an appropriate case.[5]
[5]There are however, significant hurdles in the way of a successful application to extend time to bring a claim for review, not least section 61(3) of the QCAT Act which prohibits any extension of time if to do so would cause prejudice or detriment to a party or potential party to a proceeding not able to be remedied by an appropriate order for costs or damages.
In departing from Omae and Orenshaw I am conscious of the need to promote consistency of the tribunal’s decisions[6]. However this is a matter which goes to jurisdiction and to the rights of the parties to be heard in the tribunal.
[6]QCAT Act ss 3(c), 4(d).
Conclusion
Section 86(2)(c) of the Queensland Building and Construction Commission Act 1991 (Qld) does not apply to house owners. The application to strike out the application for review because of section 86(2)(c) is refused.
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