Dixonbuild Pty Ltd v QBCC [2024] QCAT 39

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dixonbuild Pty Ltd v QBCC [2024] QCAT 39 PARTIES: DIXONBUILD PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent) SCOTT NEWTON (second respondent) APPLICATION NO/S: GAR329-20 MATTER TYPE: General administrative review matters DELIVERED ON: 30 January 2024 HEARING DATE: 10 November 2023 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Dixonbuild Pty Ltd pay the costs of the Queensland Building and Construction Commission thrown away by the adjournment of the hearing on 10 November 2023 on the District Court scale on a standard basis. The Queensland Building and Construction Commission file in the Tribunal and serve a copy on Dixonbuild Pty Ltd of its claimed costs of adjournment with such copies of accounts, fee notes and other material as support the claim by 13 February 2024. Dixonbuild Pty Ltd file in the Tribunal and serve a copy on the Queensland Building and Construction Commission any submissions in reply by 27 February 2024. The issue of such costs, including fixing the costs if possible, shall be determined on the papers thereafter. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – whether costs of adjournment should be paid – where evidence in the form of an affidavit sworn the day before hearing raising a -- 1 of 6 -- 2 fresh issue in the review proceedings – where an adjournment granted to the Commission – where two opposing parties claimed costs of the adjournment against the other – where the Commission had been taken by surprise – where the builder had opportunity to raise the evidence and lead the evidence well before hearing but had not – where the Commission was entitled to the costs of hearing thrown away because of the adjournment – where costs should be fixed but could not be fixed – where directions made to file material in support of the claim for costs Queensland Building and Construction Commission Regulation 2018 (Qld), s 2 Stainton v Footlong Subs Employment Services Pty Ltd [2011] QCAT 186 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 [1] In 2013 Dixonbuild Pty Ltd (‘the builder’) contracted with then owners of land near Brisbane to build them a house. The work was completed by September 2014. Those owners sold the house to Mr Newton in 2017. [2] Mr Newton claimed there were a number of things wrong with the house and he complained to the builder. One problem was a drainage problem. The builder engaged engineers to attend and investigate. This was in 2019. The engineers reported that 4 gully traps noted on the original drainage plans had not been installed. [3] The builder engaged a plumber, Mr Scully, to attend the site on about 20 May 2020. It seems Mr Scully installed 4 gully traps. Despite that, at or about that time Mr Newton complained to the QBCC about 69 items of defective work, two of which concerned the drainage problem. [4] The QBCC inspected the work onsite which now included the presence of gully traps. The QBCC issued the builder with a direction to rectify the drainage problem, which was identified as defective building work. [5] That has prompted the builder to commence the within review proceedings in the Tribunal hoping to set aside the direction to rectify defective building work. [6] The matter came on for hearing on 10 November 2023 but has been adjourned on the application of the QBCC. Both the builder and the QBCC seek costs thrown away by the adjournment. Mr Newton has not made any application for costs of the adjournment. Mr Newton is not legally represented in the proceedings and it is doubtful he has claimable legal costs. [7] The review application was listed for hearing over two days. On the morning of the first day of hearing, counsel for the builder tendered in evidence four affidavits -- 2 of 6 -- 3 deposed to by the builder’s managing director. The fourth (‘exhibit 4’) was sworn the day before hearing and had only been served on the QBCC the day before hearing. [8] The solicitor representing the QBCC objected to the affidavit being admitted into evidence. [9] The affidavit purports to show what is entitled a purchase order/subcontract agreement from Mr Scully the plumber to the builder. It is not clear who prepared the document. It is dated 20 May 2020. It says little about the work Mr Scully did onsite or was asked to do. It does not mention the 4 gully traps he apparently installed on that date, nor the excavation work associated with that. Its significance is apparently the cost claimed for the work done by Mr Scully which is the amount of $500.50 including GST. [10] Counsel for the builder made clear that the builder’s position will be that the value of the defective work the subject of the direction to rectify is below the threshold value for construction work to be building work (subject to directions to rectify) as provided by s 2 of Schedule 1 of the Queensland Building and Construction Commission Regulation 2018 (Qld). [11] The affidavit also exhibits “the original site cost extension” which the managing director swears “shows the site-specific extras included for the build at the site address.” There is no mention of field gullies in that document. [12] The solicitor representing the QBCC objected to the affidavit on the basis it had only been received at 4.28pm the afternoon before the hearing commenced despite the builder having since end March 2022 to comply with Tribunal directions to file and serve statements of evidence. By directions dated 17 March 2022 the parties had been directed by the Tribunal to file final statements of evidence by end of March 2022. In particular, the builder had been directed to file its last statement of evidence on 31 March 2022. It complied (though late) by filing a statement of evidence on 5 April 2022, which was the affidavit tendered as Exhibit 3 at the hearing on 10 November 2023. [13] By direction 4 of the directions of the Tribunal made 17 March 2022 the parties were advised that no party would be allowed to present any evidence at the hearing not contained in the statements, or material already filed, without justifying the need for such additional evidence to the Tribunal. [14] There was no attempt made to justify the need for the 4th affidavit of the managing director prior to its tender. [15] At a directions hearing on 17 April 2023, a member confirmed with the parties that all material had been filed and the matter was otherwise ready for hearing. The solicitor for the QBCC and Mr Newton verbally agreed that was the case and a solicitor appearing for the builder voiced no contradiction. [16] In his opening, Counsel for the builder identified 3 issues to be resolved by the tribunal as follows: that any defect associated with the drainage was not a structural defect and the time to issue a direction to rectify had expired when it was issued; the circumstances prevailing made it unfair for the QBCC to issue any direction to rectify; and, and the main issue relied on by the builder was that the building work identified as defective, was not ‘building work’ within the meaning of that term used in the legislation. -- 3 of 6 -- 4 [17] The solicitor for the QBCC said the issue about the value of the work being less than the threshold amount was new, it had not been raised before, and QBCC would need to consider the matter; instructions would have to be taken and the QBCC would have to assess the value of the work done. [18] The builder says the QBCC building inspector involved in this matter should reasonably have known that the value of Mr Scully’s work to install field gullies would be less than $3,300. [19] Mr Newton, himself a builder, said he doubted the amount claimed in the purchase order was true or accurate. He thought the amount of $500.50 for the work done by Mr Scully was too cheap. [20] Apart from that, it seems clear that another issue potentially arising from this and not addressed by either party is whether Mr Scully’s work installing 4 gully traps (and associated trenching and levelling) was new work as claimed by the builder or building work within the scope of the original construction contract, and if the latter whether the $3,300 threshold was relevant. [21] Counsel for the builder said the QBCC had always had to prove that the work concerned was building work. The QBCC knew that was an issue and knew that for some time. In that sense, claims the builder, it is the builder who has suffered prejudice in that the QBCC never explained in its statements of evidence how the work was ‘building work’. Hence the builder was obliged to obtain the evidence about the value of the work to show that the work did not fall within the $3,300 threshold. [22] This does not explain why the builder failed to file and serve its evidence about the cost of the work being less than $3,300 much earlier than the afternoon prior to hearing. [23] Insofar as Counsel suggests the issue about the drainage work, the subject of the direction to rectify not being ‘building work’ because it had a value less than $3,300, had been raised, directly or indirectly, before tendering the affidavit exhibiting the purchase order, I cannot agree. [24] Neither the purchase order nor the claim that the cost of the building work had a value less than the threshold amount of $3,300 had ever been raised by either party until the morning of hearing. The purchase order says nothing about gully traps, and indeed its relevance to proving the drainage work, which arguably at least concerns the work putting in the gully traps, cost less than $3,300 is not clear on the face of the document. [25] In the initial application for review the builder submits the direction to rectify should be set aside for a number of reasons, but not because the claimed value of the defective work is less than $3,300. [26] By the affidavit of the managing director of the builder, Exhibit 1, the issue of the drainage work not being building work was expressly addressed under a heading “Building work”. The submission was limited to field gullies not being a mandatory drainage requirement for the building nor connected to the building’s drainage system, and that the direction to rectify should be understood to address the height of the turf laid on top of the drainage trenches for the gully traps, which was not building work as defined in the QBCC Act. [27] That position was repeated in the further affidavits of the managing director, Exhibits 2 and 3. -- 4 of 6 -- 5 [28] The claim that the value of the work done by Mr Scully was less than the threshold minimum of $3,300 was never raised as an issue in the proceeding until the morning of hearing. [29] The new issue is significant if established. If accepted it would prove determinative in favour of the builder. It should have been raised much earlier than the day of the hearing. [30] There are no pleadings in the Tribunal identifying and limiting the issues in dispute in a proceeding. The issues are derived from the statements of evidence. [31] In Stainton v Footlong Subs Employment Services Pty Ltd [2011] QCAT 186, Senior Member Endicott said: [9] It is a (sic) obligation of the tribunal under section 28(3)(e) of the Queensland Civil and Administrative Tribunal Act 2009 to ensure that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. For this reason directions are made for the filing of witness statements and documents to be relied on before the hearing of a proceeding. Parties are expected to take active steps to engage in a proceeding and have a specific duty in section 45 of the Queensland Civil and Administrative Tribunal Act 2009 to act quickly in any dealing relevant to the proceeding. [10] The tribunal controls the hearing process not the parties. The tribunal will not permit evidence being withheld and produced only at a hearing by a party. Disclosure of the evidence in support of a matter is required to be made well before a hearing so that no party is taken by surprise or rendered at a disadvantage at the hearing. [32] The QBCC says the builder has failed to comply with the directions of the Tribunal to file its statements of evidence by 31 March 2022. In result the QBCC was taken by surprise with the new claim about the building work being less than the $3,300 threshold. I accept that is the case. I accept it was reasonable for the QBCC to request an adjournment to address this new issue. [33] I determine it is in the interests of justice to award the QBCC its costs thrown away as a result of the adjournment, and those costs should be paid by the builder. [34] The builder has acted in a way that unnecessarily disadvantaged both respondents. The hearing has been further delayed with the adjournment, and the respondents inconvenienced. [35] There is no explanation offered by the builder why the late evidence was so late. The purchase order/subcontract is dated 20 May 2020 and the site costs extension document dates back to the time of the original construction contract. [36] There is no issue about the decision maker not affording natural justice to the applicant builder in considering whether or not a costs order is called for. [37] The QBCC seek an award of costs on the standard basis on the District Court scale. That seems appropriate. By s 107 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), if I make a cost order I should fix the costs if possible. I cannot fix the respondents’ costs of adjournment thrown away now, as there are no particulars of the costs claimed and there is no supporting material evidencing the -- 5 of 6 -- 6 costs claimed. I shall give directions for the parties to file submissions and supporting material to that end. -- 6 of 6 --