Braycroft Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 176

CITATION: Braycroft Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 176 PARTIES: Braycroft Pty Ltd (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR059-17 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 22 May 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to extend or shorten a time limit or for waiver of compliance with a procedural requirement is dismissed. 2. The application to review a decision is dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION, AND ABRIDGMENT – where home warranty insurance claim declined – where internal review confirmed original decision – where applicant disputed decision with decision-maker instead of applying for external review INTERESTS OF JUSTICE – PREJUDICE - LENGTH OF DELAY – where delay of ten months disproportionate to prescribed timeframe of 28 days and contrary to Tribunal’s ideals of fairness, informality, and expedition REASONABLE EXPLANATION – where no -- 1 of 11 -- 2 reasonable explanation for initial four months – where delay due to organising trades to remedy defects not reasonable as would appear to breach insurance policy conditions and situation no different from other homeowner faced with non-completion and a potential insurance claim – where applicant did not proceed with external review due to mistaken view of law – where extending time for delay caused by fundamental mistaken view of law would undermine legislative scheme for review and is contrary to Tribunal’s mandate to resolve matters expeditiously MERITS OF CASE – where applicant did not provide material for Tribunal to consider preliminary issue of merit – where not sufficient to displace prima facie rule that proceedings commenced outside period will not be entertained and that applicant show acceptable explanation for delay – where applicant’s unilateral acts of completion would appear to breach insurance policy conditions and prevent any future assessment of need, scope, and expenditure required for works and severely limit its prospects of success on review Queensland Building and Construction Commission Act 1991 (Qld), s 86C Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 33 Aon Risk Services Aust Ltd v. Australian National University (2009) 239 CLR 175 Batch v. Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 93 Benson v. Ware [2012] QCATA 24 Bigby v. Queensland Building and Construction Commission [2014] QCAT 169 Bradley v. Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 130 Braunberger v. Assistant Commissioner Les Hopkins [2014] QCAT 34 Breezeway Developments Pty Ltd v. ADG Hydraulics Pty Ltd [2010] QCATA 69 Brookes v. Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 131 -- 2 of 11 -- 3 Brown v. Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 128 Burnett v. Nogoa River Flood Plain Board & Ensham Resources P/L [2010] QCAT 50 Chief Executive, Department of Employment, Economic Development and Innovation v. Fuchs [2011] QCAT 29 Cardillo v. Queensland Building Services Authority [2011] QCAT 574 Creek v. Raine & Horne Real Estate Mossman [2011] QCATA 226 Crime and Misconduct Commission v. Chapman [2011] QCAT 229 D Wren Pty Ltd and F Wren Pty Ltd v. Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 29 Danes and Anor v. Sulman [2012] QCATA 81 Fuchs v. Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 91 Gallagher v. QBSA [2010] QCAT 383 Hunter Valley Developments Pty Ltd v. Barry Cohen, Minister for Home Affairs [1984] FCA 176 Litzow v. Racing Queensland Pty Ltd [2010] QCAT 414 Lucic v. Nolan [1982] FCA 217 McClintock v. Queensland Building Services Authority [2010] QCAT 68 Melksham & Burger v. Body Corporate for Aqua [2010] QCAT 7 Rayner & Anor v. Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212 Regal Waters Retirement Community Pty Ltd v. Miller & Ors [2011] QCAT 479 Ren v. Poolworld Pty Ltd [2011] QCAT 706 Surace v. Commisso Enterprises Pty Ltd and Anor [2011] QCAT 271 The Body Corporate for No. 9 Port Douglas Road v. McEvoy [2011] QCATA 292 Thompson Residential Pty Ltd v. Hart & Hart [2014] QDC 132 Whalley v. Queensland Building and Construction Commission [2017] QCAT 15 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 3 of 11 -- 4 REASONS FOR DECISION What is this Application about? [1] The Queensland Building and Construction Commission declined Braycroft Pty Ltd’s claim under the Home Warranty Insurance Scheme because it found that Braycroft did not properly terminate the contract. [2] The Commission confirmed its decision on internal review. Braycroft disputed this was a “new decision” but instead of applying for external review by the Tribunal, and after a delay of some months, pursued the Commission to re-consider. [3] When the Commission refused, Braycroft applied to the Tribunal for external review. At the same time, Braycroft Pty Ltd applied to the Tribunal for an order declaring that a letter from the Queensland Building and Construction Commission dated 29 April 2016 did not constitute a “new decision”1 and an order requiring the Commission to make a “new decision” within 28 days. [4] In the alternative, Braycroft applied to the Tribunal to extend the time limit to apply for external review. Background [5] After the Commission filed submissions in reply to Braycroft’s application as directed by the Tribunal,2 Braycroft sent an email to the Tribunal with “brief submissions in reply”,3 without any directions to do so from the Tribunal and despite already providing submissions with its application. [6] Braycroft’s further unsolicited submissions could raise issues of procedural fairness for the Commission, who has not been given an opportunity to respond. Making unsolicited submissions is contrary to the Tribunal’s mandate to observe the rules of natural justice and ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice.4 [7] Doing the best I can to address these submissions within this context, it would appear that most of these submissions do not add to Braycroft’s submissions accompanying its application. They do, however, raise two further points that can be dispensed with promptly. [8] Braycroft submitted that the Commission’s submissions should be “ignored” because they were prepared by an external lawyer without the Tribunal granting leave for the Commission to be legally represented. 1 Queensland Building and Construction Commission Act 1991 (Qld), s 86C. 2 Directions dated 22 March 2017. 3 Email Lawrie Ward to QCAT dated 9 April 2016. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c), s 28(3)(a). -- 4 of 11 -- 5 [9] Although the Commission’s submissions are signed by a law firm as “Solicitors for the Respondent”, this does not equate to representation requiring leave. It is well established that a party can prepare and formulate its case and documents with legal assistance, without requiring the Tribunal’s leave.5 [10] Braycroft also submitted that “the Applicant consented to a decision being made in a longer period… that consent has not been withdrawn and there is no time limit on that longer period”.6 [11] Nothing turns on this submission. If Braycroft agreed to a longer period of 90 days from the Commission’s email of 5 February 2016 for the Commission to complete its review,7 that expired on 5 May 2016.8 If the Commission did not decide the application by then, it is deemed to have made the same reviewable decision.9 [12] I will now address the substantive issues. What was the original decision? [13] On 3 December 2015, Ms Marie-France Wellington, Claims Officer with the Commission, disallowed Braycroft’s non-completion claim under the Home Warranty Insurance Scheme on the basis that it had not properly terminated the contract. When did the Commission make an ‘internal review’ decision? [14] It would appear that Braycroft applied for internal review on 30 December 2015.10 [15] On 29 April 2016, Mr Jonathan Pacey, Senior Internal Review Officer with the Commission, notified Braycroft: I have reviewed this matter and decided to uphold the original decision on the basis that you have not provided sufficient evidence to indicate that the decision was incorrect.11 5 Bradley v. Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 130 at [30]; Brookes v. Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 131 at [30]; Melksham & Burger v. Body Corporate for Aqua [2010] QCAT 7 at [25]; Batch v. Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 93 at [32]; Brown v. Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 128 at [30]; D Wren Pty Ltd and F Wren Pty Ltd v. Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 29 at [30]; Burnett v. Nogoa River Flood Plain Board & Ensham Resources P/L [2010] QCAT 50 at [17]; Fuchs v. Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 91 at [31]; Regal Waters Retirement Community Pty Ltd v. Miller & Ors [2011] QCAT 479 at [9]. 6 Email Lawrie Ward to QCAT dated 9 April 2017. 7 Email Lawrie Ward to QBCC dated 5 February 2016. 8 Queensland Building and Construction Commission Act 1991 (Qld), s 86C(2)(b) 9 Queensland Building and Construction Commission Act 1991 (Qld), s 86C(3). 10 QBCC letter to Braycroft Pty Ltd dated 29 April 2016 refers to a review application dated 30 December 2015. -- 5 of 11 -- 6 [16] Braycroft submitted that this was not an ‘internal review decision’ because the review officer did not consider the matter afresh, but merely followed the previous findings of an adjudicator. [17] Regardless of the basis for the Commission’s decision on 29 April 2016, it was a ‘decision’. For the purposes of a review application, a ‘decision’ is not characterised by its reasoning, but rather by the acting or failing to act on information to come to a conclusion within the required period.12 Even a failure to decide an internal review application within the required period is deemed to be a ‘decision’.13 This shows that reasoning is not relevant to whether a ‘decision’ has been made: it is the result, not the process that is relevant. [18] A decision is still ‘new’ for the purposes of internal review even if it mirrors the original decision, provided that a new, independent mind of a person no less senior is brought to the issue.14 Nothing in the material suggests that this did not occur: the person who decided the internal review application was not the person who made the original decision and was more senior.15 [19] The Tribunal is satisfied the letter from the Commission to Braycroft dated 29 April 2016 is an ‘internal review decision’ for the purposes of external review. [20] This means that Braycroft’s application for an order declaring that the Commission’s letter dated 29 April 2016 did not constitute a ‘new decision’ and for an order that the Commission make a new decision must be dismissed. [21] Braycroft had 28 days to apply for external review by the Tribunal from when the Commission notified him of its decision.16 This means that Braycroft had 28 days from 29 April 2016 to apply to the Tribunal for external review. Should the Tribunal extend the time limit? [22] The Tribunal must consider the interests of justice to decide whether to extend time.17 This requires considering whether another party will be prejudiced, the length of the delay, whether the applicant has a reasonable explanation for the delay, and the merits of its case.18 11 QBCC letter to Braycroft Pty Ltd dated 29 April 2016. 12 Queensland Building and Construction Commission Act 1991 (Qld), s 86C(1), s 86C(3). 13 Queensland Building and Construction Commission Act 1991 (Qld), s 86C(3). 14 Queensland Building and Construction Commission Act 1991 (Qld), s 86C(4); Whalley v. Queensland Building and Construction Commission [2017] QCAT 15 at [73]. 15 Queensland Building and Construction Commission Act 1991 (Qld), s 86C(4). 16 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3), s 33 (4). 17 Cardillo v. Queensland Building Services Authority [2011] QCAT 574 at [18], citing with approval Gallagher v. QBSA [2010] QCAT 383; CMC v. Chapman & Anor [2011] QCAT 229. 18 Cardillo v. Queensland Building Services Authority [2011] QCAT 574 at [18], citing with -- 6 of 11 -- 7 Is the Commission prejudiced by the delay? [23] The Commission conceded that it has not been prejudiced by the delay. How long is the delay? [24] Braycroft did not apply to the Tribunal to review the internal review decision until 16 March 2017, some ten months after the 28-day time limit.19 I do not accept Braycroft’s submission that this is not such a long time “in the bigger scheme of this matter”.20 [25] This is because granting an extension for such a lengthy period is disproportionate to the prescribed timeframe of 28 days and other cases in the Tribunal where extensions of only a few days or weeks have been granted,21 and is contrary to the Tribunal’s ideals of fairness, informality, and expedition.22 Is there a reasonable explanation for the delay? [26] Braycroft submitted that following the Commission’s refusal of its claim, it had been “consistently and repeatedly” informing the Commission that the original decision and internal review decision were incorrect and not properly made. It submitted that it had decided not to proceed with an application for review by the Tribunal, while liaising with the Commission to reconsider its decision of 29 April 2016. [27] The Commission conceded that it had discussed with Braycroft whether it was able to reconsider the decision between 16 November 2016 and 16 February 2017. [28] However, this does not explain the delay before this: from the decision of 29 April 2016. The evidence does not show ongoing communications or negotiations between Braycroft and Commission following the internal review decision of 29 April 2016. [29] Following the Commission’s internal review decision on 29 April 2016, Braycroft emailed the Commission on the same day taking issue with aspects of the decision and then did not contact the Commission again approval Gallagher v. QBSA [2010] QCAT 383; CMC v. Chapman & Anor [2011] QCAT 229 19 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 33(3); Application to review a decision dated 16 March 2017. 20 Unlike Bigby v. Queensland Building and Construction Commission [2014] QCAT 169, where a delay of three to five months in filing the application for review was in the context of a delay of nine years between completion of the work and the home owner first complaining to the Commission. 21 Litzow v. Racing Queensland Pty Ltd [2010] QCAT 414 (eight days); Crime and Misconduct Commission v. Chapman [2011] QCAT 229 (one day); Chief Executive, Department of Employment, Economic Development and Innovation v. Fuchs [2011] QCAT 29 (one day); Surace v. Commisso Enterprises Pty Ltd and Anor [2011] QCAT 271 (one week); The Body Corporate for No. 9 Port Douglas Road v. McEvoy [2011] QCATA 292 (one month). 22 Danes and Anor v. Sulman [2012] QCATA 81 at [15]. -- 7 of 11 -- 8 until an email of 22 August 2016. Braycroft’s email of 22 August 2016 relevantly stated: I refer to my unacknowledged email below, in response to your attached letter. I have been occupied navigating the tortuously time consuming defect rectification process. Now that is nearing a successful conclusion, I revisited your review.23 [30] By this time, the 28-day period to apply for external review had already passed. Given the lack of communication between Braycroft and Commission between 29 April and 22 August 2016, the Tribunal does not accept that communications between Braycroft and the Commission explains the delay of four months. [31] Braycroft said that following its termination of the contract on 15 October 2015, it had been very busy organising trades to remedy defects and complete the work, and dealing with other issues created by the builder. This cannot be a reasonable explanation as it would appear to breach the insurance policy conditions.24 [32] Moreover, the Tribunal does not accept this as a reasonable explanation for a delay of some 10 months. Braycroft’s situation was no different from any other homeowner faced with non-completion and a potential claim under the statutory insurance scheme. At most, this might explain a delay of days or weeks. The review application form is six pages in length, is not difficult to understand,25 and would not require an inordinate period to complete. [33] Braycroft did nothing for four months and then contacted the Commission requiring it to perform its “statutory duty”.26 The Commission had already done that on 29 April 2016. It would appear that Braycroft did not proceed with external review because it (mistakenly) believed the Commission’s letter of 29 April 2016 was not an internal review.27 Unfortunately for Braycroft, it “nailed its colours to the wrong mast”.28 [34] If Braycroft believed the Commission’s decision to be incorrect or even not properly made,29 then the Legislature has specifically provided for external review. Braycroft did not do this and thereby failed to act in its own best interests: The statutory regime places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. 23 Email Lawrie Ward to Internal Review dated 22 August 2016. 24 See reasons under heading ‘Does the application for review have merit?’. 25 Rayner & Anor v. Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, per Wilson J at [46]. 26 Email Lawrie Ward to Internal Review dated 22 August 2016. 27 Email Lawrie Ward to Internal Review dated 29 April 2016. 28 Thompson Residential Pty Ltd v. Hart & Hart [2014] QDC 132, per McGill SC DCJ at [85]; See reasons under heading ‘When did the Commission make an internal review decision?’ 29 Queensland Building and Construction Commission Act 1991 (Qld), s 86C(3). -- 8 of 11 -- 9 QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’.30 [35] Braycroft’s communications with the Commission quoted relevant provisions of the Act, provided an interpretation, and cited case law. Within this context, it is difficult to envisage how Braycroft could not have read or understood the provisions providing for external review and what constitutes an ‘internal review’. [36] Extending time for delay caused by an applicant’s fundamental mistaken view of the law in these circumstances would undermine the legislative scheme for review and is contrary to the Tribunal’s mandate to resolve matters expeditiously:31 In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests, or accept the consequences; and that mistakes like those made here, while attracting sympathy, can no longer prevail over statutory and practical constraints on available resources for dispute resolution.32 [37] The Tribunal does not accept Braycroft’s disagreement with the Commission’s internal review decision provides a reasonable explanation to not apply to the Tribunal for external review. [38] The Tribunal cannot find a reasonable explanation for the delay. Does the application for review have merit? [39] The Commission declined Braycroft’s insurance claim because Braycroft failed to make a fixing stage payment when it purported to terminate the contract. Braycroft submitted that it correctly terminated the contract because the builder did not complete the fixing stage. [40] In its application to extend time, Braycroft referred to statutory declarations, an expert’s report, and photographs to show that fixing stage was not reached. Whether any of this has value depends on whether: 1. completion of the work to fixing stage was a condition precedent to payment; and 2. what has in fact been done can be said to constitute satisfaction of the definition of “fixing stage” in the contract – if any.33 30 Creek v. Raine & Horne Real Estate Mossman [2011] QCATA 226, per Wilson J at [13]. 31 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4. 32 Breezeway Developments Pty Ltd v. ADG Hydraulics Pty Ltd [2010] QCATA 69 at [12]. 33 Thompson Residential Pty Ltd v. Hart & Hart [2014] QDC 132, per McGill SC DCJ at [72]. -- 9 of 11 -- 10 [41] However, Braycroft did not provide any contract alleged to have been relied upon or other material for the Tribunal to consider either of these issues - not in in the Application to extend, substantive Application for review, or later unsolicited submissions. [42] Whether Braycroft properly terminated the contract would require consideration of the terms of the contract, including whether completion of the work to fixing stage was a condition precedent to payment.34 Because of the lack of material and in particular, any contract alleged to have been relied upon, the Tribunal was unable to consider even this preliminary issue of merit. [43] Braycroft also submitted that by declining its claim, the Commission “forced” Braycroft into arranging and already paying for completion of the building and defects.35 However, the appropriate course would have been for Braycroft to apply for external review without delay. [44] Moreover, Braycroft’s unilateral acts of completion would appear to breach the insurance policy conditions requiring the Commission’s written approval.36 By proceeding to completion without approval, Braycroft has prevented any future assessment of the need, scope, and expenditure required for the works. This would severely limit its prospects of success on review. [45] Within the context of proper case management and the proper use of public resources,37 Braycroft has not established any merit sufficient to displace the prima facie rule that proceedings commenced outside the prescribed period will not be entertained and that it is a precondition to the exercise of discretion in the applicant’s favour that the applicant show an acceptable explanation for the delay.38 Do the interests of justice warrant an extension of time? [46] The Tribunal does not consider the interests of justice are served by extending time39 because of the disproportionate length of the delay,40 the lack of a reasonable explanation for the delay,41 and Braycroft’s failure to show merit in its application for review42. 34 Thompson Residential Pty Ltd v. Hart & Hart [2014] QDC 132. 35 Application to extend dated 16 March 2017, Part B at [18]. 36 QBCC Insurance Policy Conditions (Edition 8), section 7.1 as cited in Submissions In Response dated 4 April 2017, paragraph 4.19. 37 Ren v. Poolworld Pty Ltd [2011] QCAT 706 at [8], citing with approval Aon Risk Services Aust Ltd v. Australian National University (2009) 239 CLR 175. 38 Cardillo v. Queensland Building Services Authority [2011] QCAT 574 at [33], citing with approval Lucic v. Nolan [1982] FCA 217 and Hunter Valley Developments Pty Ltd v. Barry Cohen Minister for Home Affairs [1984] FCA 176 at [18]; Bigby v. Queensland Building and Construction Commission [2014] QCAT 169 at [23] to [24]. 39 Benson v. Ware [2012] QCATA 24 at [9]. 40 Braunberger v. Assistant Commissioner Les Hopkins [2014] QCAT 34 at [9]. 41 McClintock v. Queensland Building Services Authority [2010] QCAT 68 at [4]. 42 McClintock v. Queensland Building Services Authority [2010] QCAT 68 at [4]; -- 10 of 11 -- 11 What are the appropriate Orders? [47] The appropriate Orders are that: 1. The application to extend or shorten a time limit or for waiver of compliance with a procedural requirement is dismissed; and 2. The application to review a decision is dismissed. Braunberger v. Assistant Commissioner Les Hopkins [2014] QCAT 34 at [9] -- 11 of 11 --