Budget Pools QLD v Queensland Building and Construction Commission [2022] QCAT 216

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Budget Pools QLD v Queensland Building and Construction Commission [2022] QCAT 216 PARTIES: BUDGET POOLS QLD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR649-21 MATTER TYPE: General administrative review matters DELIVERED ON: 14 June 2022 HEARING DATE: 14 June 2022 HEARD AT: Brisbane DECISION OF: Member Olding ORDERS: The applicant’s Application to extend or shorten a time limit or for waiver of compliance with a procedural requirement is refused. The application for review is dismissed. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where builder applied for review of scope of works decision – where application filed more than 28 days from notice of decision – where 28-day time limit is not merely procedural but goes to jurisdiction – held Tribunal has no jurisdiction to hear and decide the application for review Queensland Building and Construction Commission Act 1991 (Qld), s 86F(1)(c Queensland Building and Construction Commission v Crocker [2018] QCATA 194 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 3 -- 2 REASONS FOR DECISION What is this case about? [1] This matter concerns a dispute regarding a swimming pool the applicant contracted to construct for a homeowner. [2] The Queensland Building and Construction Commission decided to allow a claim by the owner under the Queensland Home Warranty Scheme and served the applicant with a notice of the decision. The applicant did not seek internal or external review of that decision. [3] On 17 September 2021, the Commission decided to approve a scope of works to be undertaken in settlement of the insurance claim (“SOW decision”). The applicant considers the cost of the works, which the Commission may seek to recover from the applicant, to be excessive. [4] However, although the Commission emailed the applicant a copy of SOW decision on the same day, the applicant did not apply for a review of that decision until 17 November 2021. That is well outside the 28-day time limit for applying for review of SOW decisions. The applicant has therefore sought an extension of time to apply for the review. [5] I have decided that the Tribunal does not have power to extend the time limit and that the application for review must be dismissed. My reasons follow. Should the time to apply for review be extended? [6] Although there are provisions empowering this Tribunal to extend various statutory time limits or waive procedural requirements, the Tribunal has no power to extend or waive the 28-day time limit for applying for review of a SOW decision. [7] This is because the Tribunal does not have jurisdiction to hear and decide an application for review of a SOW decision if the building contractor does not apply for review within 28 days of being served with notice of the decision. [8] This circumstance arises out of s 86F(1)(c) of the Queensland Building and Construction Commission Act 1991 (Qld) which provides that decisions that are not reviewable include: a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision. [9] It has been held that s 86F(1)(c) is not merely procedural but rather a “mandatory substantive rule of law, and a condition of jurisdiction”.1 Accordingly, if the applicant did not apply for review within 28 days of being served with notice of the SOW decision, the Tribunal has no power extend the 28-day time limit and no jurisdiction to hear and decide the application for review. [10] The Commission sent a notice of the decision to the applicant’s email address on the day the decision was made, 17 September 2021 - which the applicant acknowledged 1 See Queensland Building and Construction Commission v Crocker [2018] QCATA 194, [41] and the authorities there cited. -- 2 of 3 -- 3 later that day - and also mailed a copy to the applicant. The applicant did not apply for review until 17 November 2021. In those circumstances, there can be little doubt that the applicant did not apply for review within 28 days of being served with notice of the SOW decision. The applicant did not submit otherwise. Disposition of this matter [11] For the reasons outlined above, the Tribunal does not have power to extend the time to apply for review of the SOW decision, nor does it have jurisdiction to hear and decide the application for review because it was filed outside the 28-day time limit. [12] It follows that I have no choice but to refuse the application for extension of time and dismiss the application for review. -- 3 of 3 --