Vytla v Queensland Building and Construction Commission - [2024] QCAT 346

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Vytla v Queensland Building and Construction Commission [2024] QCAT 346

PARTIES:

SRI VENKATA HARI PRASAD VYTLA

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR365-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

13 August 2024

HEARING DATE:

14 June 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

1. The application to strike out is allowed.

2. The application to review is struck out.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether application relates to a reviewable decision – where no basis for internal review – where no work undertaken at the direction of the QBCC – whether no basis for making decision that work satisfactorily completed - whether application for external review should be dismissed

Queensland Building and Construction Commission 1991 (Qld), s 86, s 86C, s 86E

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 47

Dew v Queensland Building Services Authority [2010] QCAT 687

Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd [2023] QCATA 71

APPEARANCES & REPRESENTATION:

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

On 9 September 2022 the applicant homeowner, Mr Vytla, applied to the Tribunal to review the internal review decision of the Queensland Building and Construction Commission dated 17 August 2022. The internal review decision was a ‘deemed decision’, that is, it was taken to be the same as the original decision because it had not been actually decided within the 28 day statutory time period.
The original decision made on 20 June 2022 was described as a decision that building work undertaken at the direction of the QBCC was of a satisfactory standard. For reasons that follow, that categorisation by the QBCC of what took place was questionable given no work was undertaken at the direction of the QBCC.
On 8 September 2023 the QBCC applied to strike out the review proceedings, in short, because there is no “reviewable decision”.
Relevant Background
The applicant made a complaint to the QBCC, listing 185 allegedly defective items in the course of the construction of the applicant’s new home. The QBCC made a decision on 24 November 2021 to give a Direction to Rectify (DTR) for 20 items but not for the others. The applicant applied for internal review of the decision not to give a DTR for the other items.
On 17 February 2022 the QBCC gave an internal review decision to issue a DTR in respect of some of those items.
On 8 March 2022 the QBCC issued the builder with a DTR to give effect to that internal review decision, which also encompassed defective work the subject of the original decision on 24 November 2021.
From 11 March 2022 to 16 June 2022 the QBCC exchanged numerous emails with the applicant and the builder regarding access to the property…

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.

Keep reading for free

Create a free CaseChat account to read Vytla v Queensland Building and Construction Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] QCAT 346
Decision Date: 13 August 2024

CaseChat Overview and Summary

The Queensland Building and Construction Commission (QBCC) filed an application to strike out a review proceeding brought by Mr Vytla, who had lodged a complaint with the QBCC about allegedly defective items in the construction of his new home. The QBCC had issued a Direction to Rectify (DTR) for 20 items, but not for the remaining 165. After an internal review, the QBCC issued a further DTR for some of the items. The QBCC subsequently notified Mr Vytla that it intended to close its file because the builder had been denied access to the property, a decision which Mr Vytla sought to review. The QBCC argued that there was no reviewable decision as no work had been undertaken at the direction of the QBCC, and thus no decision could be made that the work was satisfactorily completed.

The court examined whether the decision to close the file constituted a reviewable decision under the Queensland Civil and Administrative Tribunal Act 2009. The QBCC submitted that the internal review decision was reviewable irrespective of whether it was validly made. They argued that the file closure letter was not a decision not to direct a contractor to rectify defective building work and did not state that works undertaken by the contractor at the direction of the QBCC were of a satisfactory standard. Therefore, the letter was not a reviewable decision under section 86 of the QBCC Act. Furthermore, the QBCC contended that there could be no reviewable decision for the purposes of section 86(1)(f) of the QBCC Act if no physical works were undertaken by the builder during the rectification period stipulated in the DTR.

The court agreed with the QBCC. It found that the file closure letter did not constitute a reviewable decision as it did not give notice of one of the decisions identified in section 86(1) of the QBCC Act. Additionally, since no works were undertaken at the direction of the QBCC, there could be no reviewable decision for the purposes of section 86(1)(f) of the QBCC Act. Consequently, the application to review was struck out. The court held that the QBCC’s ability to assist was subject to the contractor being given reasonable access to carry out the rectification work, which was not granted. The QBCC’s application to strike out the review proceeding was allowed, and the application to review was dismissed.

Orders

Orders of the court

1. The application to strike out is allowed.

2. The application to review is struck out.

Background

Background to the litigation

On 8 September 2023 the QBCC applied to strike out the review proceedings, in short, because there is no “reviewable decision”.Relevant Background The applicant made a complaint to the QBCC, listing 185 allegedly defective items in the course of the construction of the applicant’s new home. The QBCC made a decision on 24 November 2021 to give a Direction to Rectify (DTR) for 20 items but not for the others. The applicant applied for internal review of the decision not to give a DTR for the other items. On 17 February 2022 the QBCC gave an internal review decision to issue a DTR in respect of some of those items. On 8 March 2022 the QBCC issued the builder with a DTR to give effect to that internal review decision, which also encompassed defective work the subject of the original decision on 24 November 2021. From 11 March 2022 to 16 June 2022 the QBCC exchanged numerous emails with the applicant and the builder regarding access to the property to enable the builder to comply with the DTR. On 20 June 2022 the QBCC notified the applicant by letter that it intended to finalise and close its file as the builder had been denied access to the property (file closure letter). On 19 July 2022 the applicant applied for internal review of the ‘decision’ of 20 June 2022, which the applicant regarded as, in effect, a decision not to issue a DTR. Discussions followed between the applicant and the QBCC which sought to clarify the subject of the internal review. On 17 August 2022 the QBCC notified the applicant and the builder that:(a)on 20 June 2022, the QBCC had decided that building work undertaken at the direction of the QBCC was of a satisfactory standard; (b)on 20 July 2022, the applicant had applied for an internal review ‘decision’; (c)the internal review was required to be completed within 28 days or a longer period agreed to by the applicant and that, if no decision is made in that time, a decision is deemed to have been made that is the same as the original decision; (d)as no decision was made by 17 August 2022, the QBCC’s decision was taken to be the same as the original ‘decision’ and the internal review case was finalised. On 9 September 2022, the applicant filed an application to review the internal review decision of 17 August 2022.The strike out application The QBCC have applied to strike out the review proceeding pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The QBCC submitted:(a)The internal review decision is a reviewable decision, irrespective of whether it was validly made: Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd [2023] QCATA 71; (b)Standing in the shoes of the original decision-maker, the Tribunal still needs to satisfy itself that the decision the subject of the internal review application was a ‘reviewable decision’, particularly where the IR decision was deemed to be the same as the original decision;(c)The applicant sought to review the QBCC’s ‘decision’ of 20 June 2022 which was a file closure letter.(d)The file closure letter was not, as the applicant alleges, a decision not to direct a contractor to rectify defective building work (noting the QBCC had already issued the original DTR and the internal review DTR to the builder).(e)Similarly, the file closure letter did not state that works undertaken by the contractor at the direction of the QBCC were of a satisfactory standard. The QBCC’s IR decision mistakenly said that the QBCC made such a decision on 20 June 2022.(f)Accordingly, the file closure letter was not a reviewable decision within the meaning of subdivision 1 as it did not give notice of one of the decisions identified in s 86(1) of the QBCC Act. Consequently, the applicant was not entitled to lodge the IR application and seek to have the file closure letter internally reviewed under s 86A.(g)Further or alternatively, to the extent the Tribunal considers the file closure letter can be taken to be a decision that building work undertaken at the direction of the QBCC was or was not of a satisfactory standard, in circumstances where no physical works were undertaken by the builder during the rectification period stipulated in the IR DTR, there can still be no ‘reviewable decision’ for the purposes of s 86(1)(f) of the QBCC Act: Dew v Queensland Building Services Authority [2010] QCAT 687 cf CTP Plumbing and Maintenance Pty Ltd v QBCC [2020] QCAT 307.(h)The review application should be dismissed or struck out on the basis it is misconceived and/or lacking in substance, there being no underlying ‘reviewable decision’ to be reconsidered.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The applicant submitted that:(a)The case should not be dismissed.(b)Their matter was unjustly closed by the QBCC.(c)Their decision to ‘deny access’ was not a blanket refusal to co-operate with the builder but based on the builder’s intrusive actions, discourteous behaviour and inappropriate comments to the applicant’s wife.(d)The QBCC be directed to address and rectify all defects.Consideration This review is a review of the internal review decision of 17 August 2022 confirming the original ‘decision’ on 20 June 2022 that building work undertaken at the direction of the QBCC is of a satisfactory standard. It is clear that there was confusion regarding the status of various steps taken by the QBCC in progressing or not progressing this matter. On 20 June 2022 the QBCC sent a letter to the applicant in the following terms:Dear Mr VytlaI understand access has not been provided for the required work to be carried out at …OUTCOME: The QBCC cannot take any further action in this matter.This case has been finalised.WHY: The QBCC’s ability to assist is subject to the contractor being given reasonable access, during work hours, to carry out the rectification work.This access was not granted.The Queensland Building and Construction Commission Act 1991 only allows the QBCC to direct a contractor if it is fair to do so.It is not fair for the QBCC to take action against a contractor when access to the site to carry out the work has not been provided. On 15 July 2022 the applicant (by his legal representative) applied for internal review of the ‘decision’ of 20 June 2022, selecting the following decisions as those he wished to internally review:·Decision to issue a direction to rectify defective building work;·Decision not to issue a direction to rectify. On 29 July 2022 the QBCC wrote to the applicant seeking clarity as to the decision sought to be reviewed. The letter stated that the QBCC had made a decision to issue a DTR and on 22 February 2022 an internal review decision was made to issue a DTR which ‘remains’. Further, that the only decision that can be reviewed is “a decision that building work undertaken at the direction of the Commission is or is not of a satisfactory standard”. Further, that that decision is only relevant if building works were undertaken and, if no works have been undertaken then “unfortunately it’s not reviewable”. On 9 August 2022 the QBCC again wrote to the applicant stating that as the timeframe of the DTR had passed, the QBCC could not go ‘back in time’ and re-issue a DTR. As no work was undertaken, the QBCC would be unable to conclude that rectification work is satisfactory. If the applicant wished for a reviewable decision to be made in respect of whether the works were satisfactorily rectified or not, this could be facilitated however it would not provide the outcome sought, which was to have the builder rectify the defects. On 17 August 2022 a deemed internal review decision was made that building work undertaken at the direction of the QBCC was of a satisfactory standard. The original decision was stated to be the decision made by Mr Colin Rendall on 20 June 2022 that building work undertaken at the direction of the QBCC is of a satisfactory standard.