Dong v Queensland Building and Construction Commission [2024] QCAT 176

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dong v Queensland Building and Construction Commission [2024] QCAT 176 PARTIES: YAN QIU DONG (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR444-23 MATTER TYPE: General administrative review matters DELIVERED ON: 29 April 2024 HEARING DATE: 4 March 2024 HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: 1. The application to dismiss or strike out a proceeding is granted. 2. The application to review the decision not to give a direction to rectify is dismissed, pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – general administrative review – where completed building inspection the subject of a decision not to issue a direction to rectify – whether s 72A(4) of the Queensland Building and Construction Act 1991 (Qld) applies – whether application to review should be struck out under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) Queensland Building and Construction Commission Act 1991 (Qld), s 72A(4), s 86, s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 24, s 47, s 61 Stephens v QBCC [2018] QCAT 281 Schauer v KJ & S O'Brien Contractor Pty Ltd [2019] QCAT 37 APPEARANCES & This matter was heard and determined on the papers -- 1 of 4 -- 2 REPRESENTATION: pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] On 26 August 2015 ML Crosby & Co and the previous owner, Michael Low, entered into a contract for the moving and re-stumping of a house. The work was completed on or about 9 September 2016. [2] On 6 December 2020 Yan Qiu Dong (‘the applicant’) purchased the property. [3] On 24 August 2022 the QBCC received a complaint from the applicant in relation to alleged defective building work at the property. [4] On 19 April 2023 an inspection was carried out by a QBCC building inspector. [5] On 21 April 2023 the QBCC gave a decision not to give a direction to rectify (DTR) and that cover was not available under the statutory insurance scheme. [6] On 18 May 2023 the QBCC received an internal review application seeking a review of the decision not to give a DTR. [7] On 14 June 2023 the QBCC made the internal review decision not to give a DTR on the basis that the statutory timeframe to give a DTR had expired, pursuant to s 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). [8] On 3 July 2023 the applicant filed an application to review that decision. [9] On 10 November 2023 the QBCC filed an application seeking to dismiss the review proceedings pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Statutory framework [10] Section 24(1) of the QCAT Act sets out what orders the tribunal may make in a review proceeding. They include an order to confirm or amend the decision (s 24(1)(a)) or to set aside the decision and substitute its own (s 24(1)(b)). [11] Section 24(2)(b) provides that, subject to any contrary order of the tribunal, the tribunal's decision under ss 24(1)(a) or (b) has effect from when the reviewable decision takes or took effect. [12] In making the decision on review, the tribunal must decide the review in accordance with the QCAT Act1 and the QBCC Act and has all the functions of the original decision-maker for that decision.2 [13] Section 72A(4) of the QBCC Act provides: (4) A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the 1 QCAT Act, s 19(a). 2 QCAT Act, s 19(c). -- 2 of 4 -- 3 commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly. [14] It will be noted that an extension can only be granted on the application of the Commission. [15] Section 47 of the QCAT Act gives the tribunal the power to dismiss proceedings in certain circumstances. Section 47 provides, relevantly: (1) This section applies if the tribunal considers a proceeding or a part of a proceeding is: (a) frivolous, vexatious or misconceived; or (b) lacking in substance; or (c) otherwise an abuse of process. (2) The tribunal may: (a) if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or … Consideration [16] The reviewable decision is the internal review decision not to issue a DTR. That decision took effect on 14 June 2023. For the purposes of this proceeding any decision by the tribunal on review would take effect from 14 June 2023, as opposed to the date of the tribunal decision.3 [17] Under s 72A(4) of the QBCC Act a DTR in relation to building work cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state. [18] The building work to which the direction relates was completed on 9 September 2016.4 This means that any DTR could only have been issued within 6 years and 6 months from 9 September 2016, that is, by 10 March 2023. [19] It follows that the tribunal cannot make a decision to issue a direction to rectify. The time for issuing a DTR had already expired on 14 June 2023, the time from when the tribunal’s decision on review took effect. [20] The Tribunal does not have the power to extend time to give a DTR unless an application has been made by the QBCC requesting the tribunal do so in accordance with s 72A(4). Here, no such application to extend time by the QBCC has been made. [21] The QBCC's refusal to make an application to extend time in accordance with s 72A(4) is not justiciable as part of this review proceeding.5 A decision to give or not 3 QCAT Act, s 24(2)(b). 4 See the Applicant’s submissions, paragraph 2 -- 3 of 4 -- 4 give a DTR is reviewable.6 However, a decision by the QBCC not to make an application to extend time to give a DTR is not. [22] Further, it is not possible to apply s 61 of the QCAT Act to extend time to give a DTR under s 72A(4).7 This is because, although s 61 gives the tribunal a general power to extend a time limit imposed by an enabling Act, the timeframe imposed by s 72A(4) has been held to be a precondition to the exercise of the tribunal's jurisdiction. Provisions of that nature have been held to be substantive rather than procedural. Section 61 only applies to the latter. This conclusion, which gives primacy to the time limit imposed by s 72A(4), is consistent with the purposes of the QBCC Act which strives to achieve a balancing of interests between the builder and the homeowner as referred to in s 3 of the QBCC Act. [23] Section 47 of the QCAT Act requires the tribunal to exercise its discretion in determining whether to dismiss or strike out a proceeding. [24] A decision to dismiss a proceeding is not made lightly but will be made where the tribunal considers it is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process. [25] Here, the review proceeding is misconceived and lacking in substance and will ultimately fail in circumstances where: (a) the time to give a DTR to the contractor has passed, as more than 6 years and 6 months has passed since the work was completed and the internal review decision was made; (b) the tribunal cannot extend the time to give a DTR unless the QBCC makes an application to extend time; (c) the QBCC has not made an application to extend time; (d) the decision not to apply to extend time is not justiciable as part of this review proceeding; and (e) the tribunal, for the reasons above, does not have jurisdiction to hear the review application, or alternatively, to decide that a DTR should be issued. [26] In all the circumstances, the review proceeding is, for the reasons above, lacking in substance and is, accordingly, struck out. 5 Stephens v QBCC [2018] QCAT 281; Schauer v KJ & S O'Brien Contractor Pty Ltd [2019] QCAT 37 at [13] - [15]. 6 QBCC Act, s 86 and s 87. 7 Doolan v QBCC [2017] QCAT 58. -- 4 of 4 --