Smith v Queensland Building and Construction Commission - [2021] QCAT 397

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Smith & Anor v Queensland Building and Construction Commission [2021] QCAT 397

PARTIES: MELISSA SMITH
CAMERON SMITH

(applicants)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR271-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

4 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. The application to extend time is refused.

2. The proceeding is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the applicant filed an application to review a decision out of time – where the applicant filed an application for an extension of time – whether the application for an extension of time should be granted.

Queensland Building and Construction Commission Act 1991 (Qld), s 87.
Queensland Building and Construction Commission Regulation 2003 (Qld) sch 2C, s19
Queensland Building and Construction Commission Regulation 2018 (Qld) sch 6, s 19.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3), s 33(4)(a), s47, s 61(1)(a), s 67WA, s 67WC(1)(d).

Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229.
Creswick v Creswick & Ors; Tabtill Pty Ltd & Ors v Creswick [2011] QCA 66.
Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34.
Kentwell v R (2014) 252 CLR 601.

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The applicants, Mr and Mrs Smith, had a swimming pool constructed by Mr Chad Wallace.
On 25 September 2019, the Smiths lodged a complaint with the Queensland Building and Construction Commission (QBCC) about the construction of the swimming pool. The complaint referred to the swimming pool not being level.
A QBCC building inspector undertook an inspection of the pool on 14 January 2020. The inspector prepared a report dated 14 January 2020. The report identified two items of defective building work:
(a)Item 1: installation of swimming pool defective and not in accordance with the requirements of AS 1839:1994 Swimming Pools – premoulded fibre-reinforced plastic installation, clause 7.2 Pool drainage. The builder failed to install subsoil drainage around the swimming pool.
(b)Item 2: installation of undersized swimming pool filter cartridge which will not sufficiently keep the water clean.
The building inspector considered item 2 to be a structural defect. Item 1 was considered to be a non-structural defect.
On 27 March 2020, the QBCC made a decision that neither item 1 nor item 2 were covered under the Queensland Home Warranty Scheme terms of cover (‘the reviewable decision’).
On 16 April 2021, the applicants filed an application to review the reviewable decision. On that date the applicants also filed an application to extend the time to file the review application.
The application to extend time falls for determination.
Applications to review – extensions of time to commence proceedings
A person affected by a reviewable decision may apply to…

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: [2021] QCAT 397
Decision Date

CaseChat Overview and Summary

In the case of Smith v Queensland Building and Construction Commission, the applicants, Mr and Mrs Smith, sought an extension of time to file an application to review a decision made by the Queensland Building and Construction Commission (QBCC). The Smiths' primary contention was that they were unable to appropriately consider their rights and obtain legal advice due to Mr Smith's health issues and financial constraints. They also argued that their delay was due to a misinterpretation of information received from the QBCC and the impact of the COVID-19 pandemic.

The legal issues before the court involved determining whether the Smiths had provided a satisfactory explanation for their delay, the merits of their case, the potential prejudice to the QBCC if time was extended, the length of the delay, and whether it was in the interests of justice to grant the extension. The court had to balance these factors against the statutory provisions governing time extensions in such applications.

The court found that while the Smiths' personal and financial difficulties were considerable, their misunderstanding of their legal entitlements did not constitute a satisfactory explanation for the delay. The QBCC's information on the review process was clear, and the Smiths' decision to pursue other claims instead of filing the review application further undermined their position. The court held that extending the time for the Smiths to file their review application would not be in the interests of justice. Consequently, the application for an extension of time was refused, leading to the dismissal of the review application as it was filed out of time.

The court made orders in accordance with section 47 of the Queensland Civil and Administrative Tribunal Act, dismissing the review application for being filed out of time.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am not persuaded that it is in the interests of justice for the extension of time to be granted. Conclusion The Smiths have failed to establish sufficient grounds upon which the the application to extend time should be granted. The application is therefore refused. The refusal of the application means that the application to review the proceedings has been filed out of time. The proceeding lacks substance and should be dismissed.[9] I make orders accordingly. [9]QCAT Act, s 47.

Ratio Decidendi

Legal Principle Established

The relevant factors to be considered when a party seeks to extend the time to file an application to review a decision are:(a)Whether there is a satisfactory explanation for the delay;(b)The merits of the applicant’s case;(c)Whether extending time will result in prejudice to any adverse party;(d)The length of the delay;(e)Whether it is in the interests of justice to grant the extension.[4][4]Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229 at [9].Consideration I will address each of these considerations by reference to the submissions by the parties.Explanation for the delay The Smiths offer the following reasons for the delay in filing the review application:(a)During the period late 2019 to March 2021, the personal and financial circumstances of the Smiths prevented them from appropriately considering their rights and obtaining legal advice with respect to the reviewable decision. These circumstances principally related to Mr Smith’s health. The Smiths also say that the effects of the COVID-19 pandemic significantly diminished their ability to seek assistance with their legal affairs;(b)The Smiths misinterpreted information they received from the QBCC and mistakenly believed that their only option in respect of tribunal proceedings was to commence a claim against the builder for a building dispute;(c)In or about January 2020, Mr Smith’s deteriorating health meant that Mrs Smith was required to ‘take charge of the QBCC complaint matter’;(d)On 20 April 2020 the Smiths lodged a complaint with the Office of the Queensland Ombudsman in relation to the reviewable decision, which was subsequently dismissed;(e)The Smiths were not aware of their entitlement to have the reviewable decision externally reviewed until advised of this by a solicitor on or about 16 March 2021;(f)Between 18 March 2021 and 9 April 2021, the Smiths were awaiting the results of investigations by a structural engineer in relation to rectification of the defects in the construction of the swimming pool. In reply submissions, the Smiths expanded upon the issues with Mr Smith’s health and their limited financial circumstances. The essence of the Smiths’ submissions remained the same. In response, the QBCC says that the Smiths have offered no satisfactory explanation for their delay in filing the review application. Notwithstanding the adverse personal circumstances faced by the Smiths, the QBCC says that the misinterpretation of information they received from the QBCC is not a good reason for granting the extension of time. The QBCC says that the Smiths chose to pursue a number of other claims rather than filing the review application. No doubt the circumstances faced by the Smiths since 2019 have been difficult. Having said this, I have some reservations about the explanation for the delay in filing the review application. The reviewable decision contains clear information about the Smiths’ rights to have the decision internally reviewed or externally reviewed. The particular information provided by the QBCC which was misinterpreted by the Smiths is not elaborated upon in their submissions. In any event, their misunderstanding of what their legal entitlements were is not in my view a satisfactory explanation for not filing the review application. It seems to me that this misunderstanding or misinterpretation is likely to be the real reason the review application was not filed. Support for this conclusion can be found in the fact that the Smiths pursued other avenues in respect of the issues regarding the swimming pool, specifically the complaint to the Ombudsman and the commencement of civil proceedings in the tribunal against Mr Wallace. It is clear that the Smiths were able to pursue these other avenues notwithstanding the adverse circumstances they faced at the time.

CITATION:	Smith & Anor v Queensland Building and Construction Commission [2021] QCAT 397
PARTIES:	MELISSA SMITH CAMERON SMITH
(applicants)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)
APPLICATION NO/S:	GAR271-21
MATTER TYPE:	General administrative review matters
DELIVERED ON:	4 November 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown
ORDERS:	1. The application to extend time is refused. 2. The proceeding is dismissed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the applicant filed an application to review a decision out of time – where the applicant filed an application for an extension of time – whether the application for an extension of time should be granted. Queensland Building and Construction Commission Act 1991 (Qld), s 87. Queensland Building and Construction Commission Regulation 2003 (Qld) sch 2C, s19 Queensland Building and Construction Commission Regulation 2018 (Qld) sch 6, s 19. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3), s 33(4)(a), s47, s 61(1)(a), s 67WA, s 67WC(1)(d). Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229. Creswick v Creswick & Ors; Tabtill Pty Ltd & Ors v Creswick [2011] QCA 66. Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34. Kentwell v R (2014) 252 CLR 601.
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)