Bulkbuild Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 413

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bulkbuild Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 413 PARTIES: BULKBUILD PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR350-19 MATTER TYPE: General administrative review matters DELIVERED ON: 27 October 2020 HEARD AT: Brisbane DECISION OF: Member Paratz AM ORDERS: The application to review a decision filed on 29 August 2019 is dismissed, pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). CATCHWORDS: PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – where a building company filed an Application to Review a decision of the Queensland Building and Construction Commission to issue Directions to Rectify – where the building company did not comply with directions of the Tribunal as to the filing of material, and as to appearance at a compulsory conference – where liquidators were appointed to the building company, and creditors resolved to wind it up –where the respondent filed an application to dismiss the proceedings – where the liquidators neither consented nor opposed the application to dismiss – where the proceedings were dismissed on the basis of unnecessary disadvantage of the respondent Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48 REPRESENTATION: Applicant: Romans & Romans Lawyers Respondent: Queensland Building and Construction Commission Legal Branch -- 1 of 3 -- 2 APPEARANCES: 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 Bulkbuild Pty Ltd (the builder) filed an application to review a decision on 29 August 2019. The application sought to review a decision of the Queensland Building and Construction Commission (QBCC) made on 6 August 2019 as to Direction to Rectify and/or Complete Work No. 0105031. The works concerned a multi-storey mixed use development comprising commercial tenancies, residential apartments and basement car parking at Lutwyche Road, Windsor in Brisbane. The contract amount for the works was $7,200,000.00. A Compulsory Conference was held in the Tribunal on 29 January 2020, and the QBCC was invited to reconsider its decision. The QBCC made a reconsidered decision dated 13 March 2020 which confirmed the original decision dated 6 August 2019. The builder was directed by Direction 2 given on 29 January 2020 as follows: Bulkbuild Pty Ltd must file in the Tribunal a notice of withdrawal or tell the Tribunal and the Queensland Building and Construction Commission, in writing whether they intend to proceed with the Application to review a decision, by: 4:00 pm on 20 March 2020. The QBCC filed an Application for Miscellaneous Matters on 2 April 2020 seeking that the matter be adjourned to the Registry, pending the outcome of Supreme Court of Queensland proceeding number 5640/19 between the builder and the developer of the works; or alternatively that the developer be joined as a Respondent in these proceedings. Directions were given on 6 April 2020 for the builder to file and give written submissions in relation to the application filed on 2 April 2020. An email was received from the solicitors for the builder, dated 27 April 2020, which stated that it constituted its client’s written submissions in response to the Application filed on 2 April 2020, which stated as follows: We are instructed our client neither opposes nor consents to the Application and will abide by the Directions of the Tribunal made in respect to that application. The QBCC filed an application for miscellaneous matters on 15 September 2020 applying to dismiss the Application for Review of a Decision. The grounds of the application were as to a failure to comply with Direction 2 given on 29 January 2020. An email was received from the solicitors for the builder, dated 17 September 2020 which stated as follows: We act for Ms Ginette Muller and Mr Marcus Watters, liquidators of Bulkbuild Pty Ltd (In Liquidation) and refer to the Respondents [sic] Application to Dismiss the Review Application. -- 2 of 3 -- 3 We are instructed to neither consent or oppose the respondents [sic] application. We note that on Friday, 19 June 2020, creditors of Bulkbuild Pty Ltd, by special resolution, resolved that the company be wound up under section 439C(c) of the Corporations Act 2001 (the Act). By reason of section 500 (2) of the Act, all actions or other civil proceedings are automatically stayed until such time as either party obtains leave of the court listed in section 58AA of the Act. The builder has not complied with Direction 2 given on 29 January 2020, as to advising whether it wished to proceed with the Application to Review a Decision after receipt of the reconsidered decision. Neither the builder itself, or its liquidators, have indicated that they wish to review the reconsidered decision. There is no indication that the Application to Review a Decision will be further pursued. The direction to rectify relates to significant defects in the work. Section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that a proceeding may be dismissed if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding by not complying with a tribunal order or direction without reasonable excuse. The builder has effectively taken no step in the proceeding since the Compulsory Conference held on 29 January 2020, and has not complied with the Direction of the Tribunal as discussed. I consider that the QBCC will be unnecessarily disadvantaged by further continuation of these proceedings which are not being actively pursued. I order that the proceeding be dismissed pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 3 of 3 --