CTP Plumbing and Maintenance Pty Ltd t/as Charlie the Plumber v Queensland Building and Construction Commission [2019] QCAT 409

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CTP Plumbing and Maintenance Pty Ltd t/as Charlie the Plumber v Queensland Building and Construction Commission [2019] QCAT 409 PARTIES: CTP PLUMBING AND MAINTENANCE PTY LTD TRADING AS CHARLIE THE PLUMBER (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR345-18 MATTER TYPE: General administrative review matters DELIVERED ON: 25 October 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: The application for miscellaneous matters filed on 13 September 2019 is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether application relates to a reviewable decision – whether building work undertaken – whether application ought to be dismissed Queensland Building and Construction Commission Act 1991 (Qld), s 72B, s 86, s 87, Schedule 2 Dew v Queensland Building Services Authority [2010] QCAT 687 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: 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 5 -- 2 REASONS FOR DECISION Introduction On 28 September 2018, CTP Plumbing and Maintenance Pty Ltd trading as Charlie the Plumber (‘CTP’) filed an application to review a decision. CTP sought to review a decision made by the Queensland Building and Construction Commission (‘QBCC’) on 3 September 2018. That decision relevantly stated: On 18 July 2018 you were directed by the QBCC to undertake rectification work at the above property. This work was to be completed by 30 August 2018. Direction number 0103649 has not been complied with. The following Direction items have not been satisfactorily rectified: 1. The installation of the new hot water unit into the existing services cupboard is non compliant with AS 3500.4 (Plumbing Code of Australia) and the Queensland Plumbing & Wastewater Code in that water from the HW unit and AC to the dwelling is being discharged directly into the safe tray resulting in pooling of water within the safe tray which is wetting the timber packers and causing rust to occur. – Pertains to item 1 of QBCC complaint form. Your failure to satisfactorily rectify the Direction items may result in a claim for the owner under the Queensland Home Warranty Scheme. QBCC may recover the amount of an approved claim from you as a debt. Should this occur, your licence may be suspended or cancelled if you fail to pay a debt to QBCC. As a result of your failure to comply with the Direction, QBCC may take action that includes: • issuing10 demerit points on your licence • substantive financial penalties if prosecuted in QCAT or courts, or if you are issued with an infringement notice • disciplinary action in QCAT or the courts • placing conditions on your licence • issuing show cause notices that may result in the cancellation or suspension of your licence. This correspondence serves as notification that you have participated in the QBCC’s dispute resolution process as prescribed by legislation and the case has now been finalised. … You have the right to have this decision externally reviewed in the Queensland Civil and Administrative Tribunal (QCAT). An external review application must be lodged with QCAT within 28 days of this decision. QCAT can be contacted on 1300 753 228 or at www.qcat.qld.gov.au. [underlining added] -- 2 of 5 -- 3 On 13 September 2019, the QBCC filed an application for miscellaneous matters. The QBCC seeks dismissal of the application for review on the basis that there is no reviewable decision. The Tribunal’s jurisdiction Section 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) provides: A person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the tribunal for a review of the decision. What is a ‘reviewable decision’ is set out in s 86 of the QBCC Act. Relevantly, s 86(1)(f) provides: (1) Each of the following decisions of the commission under this Act is a reviewable decision – … (f) a decision that building work undertaken at the direction of the commission is or is not of a satisfactory standard; … The QBCC’s position is that no building work was undertaken by CTP during the rectification period, and therefore the question of whether or not the work was of a satisfactory standard does not arise. The QBCC relies on observations of Member Cotterell in Dew v Queensland Building Services Authority:1 Therefore, in relation to Item 4, the Tribunal finds that the rectification of the pool fence was not undertaken at the direction of the BSA, as the BSA directed Mr Dew, and not Mr Starkey, to do this rectification. Therefore, the Tribunal finds that this work does not fall within section 86(1)(f) of the Queensland Building Services Authority Act 1991. Section 86(1)(f) refers to reviewable decisions and states as follows: 86 Reviewable decisions (1) The tribunal may review the following decisions of the authority— … (f) a decision that tribunal work undertaken at the direction of the authority is or is not of a satisfactory standard; On the basis of the Tribunal’s findings that no work was undertaken, the Tribunal has no jurisdiction to review the BSA’s decision of 22 April 2008. No “tribunal work” was undertaken so the question of whether or not the work was of a satisfactory standard does not arise. Rectification period I note in passing that there is a dispute as to when the rectification period ended. Section 72B(6) of the QBCC Act provides: 1 [2010] QCAT 687, [14]-[15]. -- 3 of 5 -- 4 If the commission grants the extension, the commission must give the applicant a written notice stating the period within which the applicant must rectify the work or remedy the damage. On 23 August 2018, Darren Girling of the QBCC wrote to CTP in the following terms: QBCC has taken into consideration all of your circumstances and in best interest of achieving a desirable outcome for everyone involved QBCC has approved an EOT for CTP to comply with the DTR to the 30th August 2018. The QBCC’s position is that Mr Girling did not have power to make this decision. Ultimately, whether Mr Girling did or did not have power to grant an extension has no impact on the issue before me as the decision under review was made on 3 September 2018, after the expiry of the purported extension. There is no other written document purporting to grant an extension before me which is capable of complying with s 72B(6). Building work CTP’s submission sets out the work undertaken by Mr Ben Scerri, as the representative of CTP, as follows: (a) Undertaking review of relevant codes; (b) Providing professional advice to the Owner regarding the options available to rectify the alleged defect; (c) Seeking instructions from the Owner on his preferred option; (d) Making offers to carry out the work discussed and seeking access, albeit unsuccessfully, to the Owner’s property. Section 2 of the QBCC Act defines ‘building work’ to mean: building work means— (a) the erection or construction of a building; or (b) the renovation, alteration, extension, improvement or repair of a building; or (c) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or (e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or (f) the preparation of plans or specifications for the performance of building work; or (fa) contract administration carried out by a person in relation to the construction of a building designed by the person; or (g) fire protection work; or (h) carrying out site testing and classification in preparation for the erection or construction of a building on the site; or -- 4 of 5 -- 5 (i) carrying out a completed building inspection; or (j) the inspection or investigation of a building, and the provision of advice or a report, for the following— (i) termite management systems for the building; (ii) termite infestation in the building; but does not include work of a kind excluded by regulation from the ambit of this definition. ‘Undertake’ is not defined in the QBCC Act. Its ordinary meaning, as contained in The Macquarie Dictionary, is: 1. to take on oneself (some task, performance, etc); taken in hand; essay; attempt. 2. to take on onself by formal promise or agreement; lay oneself under obligation to perform or execute. … I am mindful that this is an interlocutory application, and I do not have the benefit of evidence from Mr Scerri. However, it appears to me to be at least arguable that CTP undertook work which may fall within paragraphs (f) and/or (fa) of the definition of ‘building work’ as set out above. Conclusion As there is an arguable case that CTP undertook building work in response to the direction to rectify, I am unable to exclude the possibility the decision under review relates to whether ‘work undertaken at the direction of the commission is or is not of satisfactory standard’ for the purposes of s 86(1)(f) of the QBCC Act. In this regard, the QBCC’s decision itself, which I set out at some length, uses the term ‘satisfactorily’ twice and advises CTP that it does have a right of review to the Tribunal. I note that the issue of whether any building work undertaken by CTP was of a satisfactory standard, given it appears it did not enter onto the home owner’s property in response to the direction to rectify, is beyond the scope of the present interlocutory application. The appropriate order is for the application for miscellaneous matters to be dismissed. -- 5 of 5 --