Body Corporate for Beachfront Towers CTS 10075 v Queensland Building and Construction Commission & Anor [2023] QCAT 198

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Body Corporate for Beachfront Towers CTS 10075 v Queensland Building and Construction Commission & Anor [2023] QCAT 198 PARTIES: BODY CORPORATE FOR BEACHFRONT TOWERS CTS 10075 (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) MIDSON CONSTRUCTION (QLD) PTY LTD (respondent) APPLICATION NO/S: GAR071-20 MATTER TYPE: Building matters DELIVERED ON: 15 May 2023 HEARING DATE: 22 October 2021 HEARD AT: Brisbane DECISION OF: Member Holzberger ORDERS: The application for miscellaneous matters filed by BODY CORPORATE FOR BEACHFRONT TOWERS CTS 10075 on 19 March 2021 is dismissed. The application for miscellaneous matters filed by MIDSON CONSTRUCTION (QLD) PTY LTD on 24 March 2021 is dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS - general administrative reviews – building matters – applications for determination of preliminary issue – application to strike out application to stay when building work completed – whether sufficient evidence to determine – where applicant had proceedings in the tribunal and the Supreme Court – whether application vexatious, abuse of process Queensland Building and Construction Commission Act 1991 (Qld), s 72A(4) -- 1 of 7 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 47 JM Kelly (Project Builders) Pty Ltd & Anor v Queensland Building Services Authority [2011] QCAT 463 UBS AG v Tyne (2018) 265 CLR 77 APPEARANCES & REPRESENTATION: Applicant: I. Erskine (counsel, instructed by Barclay Beirne Lawyers) for Body Corporate for Beachfront Towers CTS 10075 First Respondent: S.E Seefeld (counsel, instructed by QBCC) for QBCC Second Respondent: B.E Codd (counsel, instructed by Bathersby Legal) for Midson Construction (QLD) Pty Ltd REASONS FOR DECISION [1] Body Corporate for Beachfront Towers CTS 10075 (Beachfront Towers) engaged Midson Construction (QLD) Pty Ltd (Midson) to carry out building works to a unit complex at 4 Aerodrome Road Maroochydore. [2] The building work commenced in or about February 2013 and a “partial” practical completion certificate was issued by Beachfront Towers property manager Stephen Ingram “as at” 21 June 2013. [3] Beachfront Towers wrote to Midson regarding alleged defects on 17 October 2019. Midson responded on 27 November 2017 effectively denying liability. [4] On 21 June 2019 Beachfront Towers commenced proceedings in the Supreme Court against both Midson and Stephen Ingram, claiming in each case damages for breach of contract and in the alternative damages for negligence. [5] On 6 September 2019 Beachfront Towers made a complaint to the Queensland Building and Construction Commission (the Commission), citing as the completion date for the works 21 June 2013. [6] On 19 December 2019 the Commission issued a direction to rectify in respect of 16 items to Midson. [7] On 15 January 2020 Midson applied for an internal review of that decision. [8] The internal review decision made on 22 January 2014 set aside the previous direction to rectify on the basis that at the time the internal review decision was made it was more than six years and six months from the completion of the works.1 The power to issue the direction to rectify had expired on 21 December 2019. [9] It is Beachfront Towers’ contention that while its claim specified a completion date of the works of 21 June 2013 there is evidence that the works continued beyond that date. To succeed in the originating proceedings it must establish that the works in fact continued until 22 July 2013 or beyond. 1 Queensland Building and Construction Commission Act 1991 (Qld) s 72A(4). -- 2 of 7 -- 3 [10] Beachfront Towers applied to the tribunal for a review of the decision of the Commission not to issue a direction to rectify to Midson on 19 February 2020 (originating application). [11] Midson was joined as a respondent in that proceeding on 6 October 2020. [12] On 19 March 2021 Beachfront Towers filed an application for miscellaneous matters seeking that the tribunal determine as a preliminary issue the date on which the building works relevant to the application were completed (the Beachfront Towers application). [13] On 24 March 2021 Midson filed in the tribunal an application for miscellaneous matters seeking to have the originating proceedings struck out as an abuse of process or in the alternative stayed pending the determination of proceedings brought by Beachfront Towers in the Supreme Court. [14] Beachfront Towers opposes the Midson application. Midson opposes the Beachfront Towers application. [15] The Commission's position is that the Beachfront Towers application should be determined in its favour, the originating proceedings should not be struck out as an abuse of process and in view of a substantial overlap of factual issues in the tribunal and the Supreme Court, proceedings should not run in parallel. [16] Both applications were heard on 22 October 2021. All parties have been granted leave to be legally represented. The tribunal has had the benefit of detailed written and oral submissions by the parties’ respective representatives. Strike out application [17] Midson seeks to have the review application struck out pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) because: (a) the relief sought in the review application cannot be granted by the tribunal and accordingly the application is “frivolous, vexatious or lacking in substance”;2 and/or (b) the proceeding is an “abuse of process,”3 the applicant having elected previously to commence proceedings in respect of the alleged defective works in the Supreme Court. Frivolous, vexatious or lacking in substance [18] Beachfront Towers was apparently self-acting at the time of drafting and filing the review application. [19] The review application clearly identifies the internal review decision as the decision to be reviewed. [20] The printed application to review a decision contains a section headed “briefly describe what you want to happen" in which Beachfront Towers states that it wants the internal review decision “declared void” and the original decision “reinstated”. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(1)(b). 3 Ibid, s 47(1)(c). -- 3 of 7 -- 4 [21] Under section 24(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the power of the tribunal on review is limited to: (a) confirming or amending the decision; (b) setting aside the decision and substituting its own; or (c) setting aside the decision and returning it to the decision-maker for reconsideration with directions it considers appropriate. [22] It is not in dispute that the relief identified in the review application is beyond the scope of section 24(1) but it is the submission of Beachfront Towers and the Commission that that in itself does not support the striking out of the action. I agree with them. [23] The substance of the relief it seeks, however poorly worded the application may be, is also clear in my view. It is seeking to have the internal review decision set aside and a decision in terms of the original decision substituted for it. I am unable to see except theoretically how Midson is disadvantaged by the wording contained in the application. In any event the written and oral submissions by the parties’ representatives in respect of these application should leave it in no doubt as to the nature of these proceedings and the relief actually sought. There has been no denial of natural justice or lack of procedural fairness. [24] I agree with the submission of Beachfront Towers that to strikeout elevates form over substance and it is not consistent with the underlying legislative purposes namely consumer protection.4 [25] Although Beachfront Towers has indicated that the review application will be amended it is perhaps unfortunate that Beachfront Towers did not take steps to amend its application to avoid the argument. In my view the review application is not frivolous, vexatious or lacking in substance. Abuse of process [26] In addition and prior to the review proceedings Beachfront Towers commenced proceedings in the Supreme Court against Midson and Stephen Ingram who at the relevant time was Beachfront Towers’ project manager. The action is for damages for defective building works, breach of contract and negligence. [27] Commencing and pursuing these review proceedings while the Supreme Court proceedings remain on foot is, it is submitted by Midson, an abuse of process which should result in the review proceedings being struck out or permanently stayed or in the alternative stayed until the Supreme Court proceedings have been determined. [28] Mr Codd, Counsel for Midson, referred at length in written and oral submissions to the decision of the High Court in UBS AG v Tyne (2018) 265 CLR 77. [29] In that case Tyne as trustee of a family trust commenced action in the Federal Court against a bank claiming damages arising from advice given by the bank to Tyne and a former trustee of the trust. Tyne, the former trustee and related company had earlier commenced proceedings against the bank in essentially the same terms in the Supreme Court of New South Wales. 4 Beachfront Towers' submissions in reply, para. 15. -- 4 of 7 -- 5 [30] Tyne and the former trustee discontinued the Supreme Court action leaving only the related company as sole plaintiff. The Supreme Court proceedings were stayed permanently and Tyne commenced the Federal Court action. [31] The majority characterised Tyne’s actions as “hiving off the Trust's claim, with a view to bringing it in another court after the determination of the New South Wales Supreme Court proceedings…"5 [32] It is not controversial that there is a standard substantial factual overlay in the two proceedings but in my view that is as far as it goes. The review application and Supreme Court proceedings are in my view very different proceedings. [33] The decision under review in the review proceedings is the Commission decision not to issue a direction to rectify to Midson. [34] The Commission's power to issue a direction to rectify and consequently the tribunal's power under review is defined and limited by the provisions of Part 6 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). [35] The Commission may issue a direction to rectify if it is of the opinion that building work is defective or incomplete or consequential damage has been caused by it.6 [36] “Building work" is defined by the QBCC Act. There are limitations including time limitations on the issue of a direction to rectify.7 [37] There is no remedy provided outside rectification. The Commission cannot compensate a party for the losses that may flow from the defective works or the rectification process (such as the cost of alternative accommodation) or determine contractual disputes. [38] By an administrative decision or series of them the Commission identifies defective building work, gives directions as to the approach of the appropriate remedies and determines if necessary whether those directions have been complied with. [39] The remedies contained in Part 6 are in addition to the claimant's rights under the building contract or at common law. It is not uncommon that a direction to rectify, even if completed, will not provide a complete remedy to an aggrieved party. [40] The Supreme Court action is an action for damages for breach of contract and negligence. That action is not constrained or even informed by the provisions of the QBCC Act. It is as characterised by the tribunal in JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2011] QCAT 463 as “just about money".8 [41] I am of the view that the circumstances here, where the overlay is factual and claims for relief sought in each case so different, both legally and practically are very different from those in UBS and are distinguishable on that basis. 5 UBS AG v Tyne (2018) 265 CLR 77, [55] ( Kiefel CJ, Bell and Keane JJ). 6 QBCC Act, s 72. 7 Ibid, s 72A. 8 [2011] QCAT 463, [37]. -- 5 of 7 -- 6 [42] While the Supreme Court could order specific performance of the contract building rectification of defective building works it is difficult to imagine it exercising its discretion to do so where complex construction issues are involved. [43] I do not accept that allowing the two proceedings to continue results in an impermissible double recovery. Should Midson carry out rectification works either pursuant to a direction to rectify or voluntarily by agreement Beachfront Towers cannot claim the value of those works as damages. [44] Any damages ultimately awarded by the Supreme Court are likely to differ from those claimed in a statement of claim even if only as a result of the effluxion of time. [45] In those circumstances the strikeout application was dismissed. Stay [46] For the same reasons I'm not prepared to stay the review proceedings pending determination of the Supreme Court proceedings. [47] In JM Kelly the tribunal discussed a similar application for stay stating:9 It is clear that, in exercising its review jurisdiction, the Tribunal must have regard to the objects of both the QCAT Act and the enabling Act. Therefore, my determination of a procedure that is both fair and quick must be informed by the objects of the QBSA Act. [48] Clearly it is consistent with the objects of the QBCC Act and public safety that the actual rectification of defective building work be undertaken properly and as quickly as practicable and that will not be achieved if the review proceedings are stayed. Preliminary issue application [49] Beachfront Towers applies to the tribunal to determine as a preliminary issue the date on which the building works to which the direction to rectify relates were completed for the purposes of section 72A(4) of the QBCC Act. [50] It is the basis of the internal review decision that a direction to rectify could not be issued because more than six years and six months had elapsed since completion of the building works and that is indeed the case if Beachfront Towers’ claim to the Commission which disclosed a completion date of 21 June 2013 accurately defines the completion date. [51] Beachfront Towers says that material which has since come to light indicates that building work continued beyond that date. [52] For Beachfront Towers to bring itself within the six years and six months limitation it must establish the building work was completed on or after 22 July 2013. I am indebted to Mr Seefeld, counsel for the Commission, for his helpful written submissions setting out the further works in tabular form.10 [53] Mr Seefeld's submissions concluded:11 9 [2011] QCAT 463, [31]. 10 Commission's submissions in response para. 111. 11 Commission's submissions para. 125. -- 6 of 7 -- 7 the available evidence indicates that the date that the building work was completed was between 31 July 2013 and 22 August 2013 (with 22 August 2013 being the better position). [54] The materials referred to were annexures to an affidavit of Michael Perren dated 7 July 2020. [55] The difficulty I have with Mr Perren’s affidavit and the various annexures is that Mr Perren does not and presumably cannot give direct evidence as to those matters. Instead he relies on the various documents which he has apparently sourced from the historical records of Beachfront Towers. There is no other evidence on the point on behalf of Beachfront Towers. [56] It appears likely that Midson may be able to shed some light on the actual completion date but it declined to file any material on the report on the point despite directions to allow it to. [57] Clearly there is an issue here as to the admissibility of all or any of the materials in this. In oral submissions Mr Codd has foreshadowed Midson’s objection to that material. But before considering the point the issue is whether the tribunal should, having regard to the limitations of the evidence, determine the issue as a preliminary point prior to the proceeding. [58] I appreciate that such a determination of the point could lead to a disposal of the action and potentially save a great deal of time and money for the parties in the tribunal. [59] I do not however believe that it is just and convenient on the available evidence before all witness statements have been lodged for the tribunal to make a decision. It may be that the evidence of the parties does little to clarify the point, however I am of the view that it is unfair to decide the point on the evidence as it currently stands. -- 7 of 7 --