Cyclone Constructions Pty Ltd v Queensland Building Services Authority [2013] QCAT 484

CITATION: Cyclone Constructions Pty Ltd v Queensland Building Services Authority [2013] QCAT 484 PARTIES: Cyclone Constructions Pty Ltd (Applicant) v Queensland Building Services Authority (Respondent) APPLICATION NUMBER: GAR084-13 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Michael Howe, Member DELIVERED ON: 12 September 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The Tribunal declares Cyclone Constructions Pty Ltd made application for review of the decision of the Authority about the amended Scope of Works to be undertaken under the statutory insurance scheme to rectify defective building work within the time required by section 86 of the Queensland Building Services Authority Act 1991. 2. The matter be listed for a directions hearing at the next available hearing date. CATCHWORDS: APPLICATION FOR REVIEW – date of application – application not kept on registry file – application out of time – application not sealed - procedural or substantive defect – service on a corporation – principal place of business – principal office – recognized companies – admission as to service – form of application in compliance with Act Queensland Civil and Administrative Tribunal Act 2009 ss 24(1)(c), 33(2), Queensland Civil and Administrative Tribunal Rules 2009 s 31 Queensland Building Services Authority Act 1991 ss 86(1)(g), 86(2)(b)&(c), 109A -- 1 of 10 -- 2 Acts Interpretation Act 1954 (Qld) s 39 Acts Interpretation Act 1901 (Cth) s 28A Corporations Act 2001(Cth) s 109X Companies Act 1961(Cth) Companies Act Amendment Act 1974 (Qld) s 343C Companies (Application of Laws) Act 1981(Qld) Part XIII Div 4 Cyclone Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 621 TBK Beef Pty Ltd v Ark Mangoes Pty Ltd [2012] NTSC 44 von Risefer v Mainfreight International Pty Ltd (2009) 25 VR 366 Robuild Pty Ltd v Queensland Building Services Authority [2013] QCAT 197 Polstar v Agnew (2007) 208 FLR 226 QBSA v Russell Ian Watkins [2013] QDC 198 Smith v Queensland Building Services Authority [2010] QCAT 448 Cardillo v Queensland Building Services Authority [2011] QCAT 574 Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCAT 180 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION Background [1] Cyclone Constructions Pty Ltd is a building company. In about 2004 Cyclone did building work at Sanctuary Cove. In 2011 the owner complained to Cyclone about water entry from the roof. [2] Mr Thompson is the sole director and the secretary of Cyclone. He inspected the roof. He said it was dented, possibly caused by a fallen tree branch, and the leak wasn’t his fault. He told the owner to claim under his general insurance. [3] Instead the owner complained to the Queensland Building Services Authority about Cyclone. In January 2012 the Authority issued Cyclone with a direction to rectify defective building work. [4] There was a discussion between Mr Thompson and an officer of the Authority. Mr Thompson advised his personal address was 6/10 Imperial Parade, Labrador, QLD 4215. -- 2 of 10 -- 3 [5] In March 2012 the Authority sent a Notice of Potential Debt to Cyclone advising that a claim under the statutory insurance scheme had been approved and enclosing a Scope of Works covering the remedial work. [6] Cyclone applied to the Tribunal to review that decision and to extend time to enable him to make the application for review. Both applications were dismissed1 on the basis the application was out of time2. [7] Subsequently the Authority concluded more extensive remedial work was necessary to remedy the defective work than first estimated. [8] Another Notice of Potential Debt with an amended Scope of Works was mailed to Cyclone Constructions Pty Ltd at 6/10 Imperial Parade, Labrador, QLD 4215 on 18 December, 2012. A copy was also mailed to another address they had of 2/760 Pacific Parade, Currumbin, Queensland 4223. [9] Mr Thompson says neither he nor Cyclone received that letter until after the January 2013 holidays. He says that letter first came to his attention on 14 January 2013. [10] The Authority says the letter was effectively served in the usual course of post immediately after 18 December 2012. If not then, by 2 or 8 January 2013 when Mr Thompson sent emails effectively admitting receipt. [11] The Authority says Cyclone has failed to apply for review of the decision about the amended Scope of Works within the necessary 28 days of service of the decision3. The Authority says that is fatal to the success of the application. Service [12] As at December 2012 Cyclone was not a registered licensee builder with an address noted in the Authority’s records. Accordingly the Authority could not rely on section 109A(1) of the Queensland Building Services Authority Act 1991 which permits service at an address of the licensee noted in the Authority's records. It can however rely on4 s 39 of the Acts Interpretation Act 1954 (Qld), which provides for service on a body corporate : “by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal office of the body corporate.” [13] There is an assertion by Cyclone that service was necessary pursuant to s 109X of the Corporations Act 2001 (Cth), which requires posting a document to a company's registered office or personal service on a director. That is not right. The Corporations Act 2001 does not affect application of a provision of another law that permits a document to be served in a different way5. That provision opens up use of s 39 of the Acts Interpretation Act 1954. 1 Cyclone Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 621. 2 In breach of s86(2)(b) Queensland Building Services Authority Act 1991(QBSA Act). 3 Section 86(2)(c). 4 QBSA Act s 109A(2). 5 Section 109X(6). -- 3 of 10 -- 4 [14] An ASIC search of the applicant shows that as at 18 December, 2012 the registered office of the applicant company was an address at Tweed Heads South, New South Wales and the company had a principal place of business at Unit 6, 10 Imperial Parade, Labrador, Qld, 4215. [15] The Authority maintains the letter of 18 December, 2012 was posted to the principal place of business of the applicant company and that is good service on the basis "principal office" referred to in s 39 includes principal place of business. [16] I do not agree. Principal Office [17] I have had cause to consider the expression “principal office” in another matter6, however the proposition that service by post to a principal place of business was effectively service at a principal office was not considered. [18] The Authority refers to a number of decisions in support of the proposition. In one of those decisions, TBK Beef Pty Ltd v Ark Mangoes Pty Ltd 7, Master Luppino states that the term principal office, not being defined in the Acts Interpretation Act 1901 (Cth)8, nor in the Corporations Act 2001, leads one to conclude that under the Acts Interpretation Act 1901 a principal office includes a principal place of business. I note the Master’s comments were clearly obiter however, and further, the extract from that case relied on by the Authority in support of their submission omits the Master’s qualifying remarks that “(t)his was not argued before me save for a passing reference so I have not had the benefit of argument on this issue. However the term must have some meaning.” [19] The Authority also relies on the decision of von Risefer v Mainfreight International Pty Ltd 9. As with TBK Beef, there is no indication this particular point was argued before Justice Ashley, and in that case there was a plethora of alternate successful acts of service which made it unnecessary to give any detailed consideration to this point. [20] The term principal office is not defined in either the Commonwealth or State Acts Interpretation Acts. That is not to say it did not once have a specific, particular and defined meaning. It did. [21] Over the years 1961 and 1962 all the States enacted uniform companies legislation10. At that time responsibility for corporate legislation lay with each State for their State. However some companies were registered in one State, but trading in another States. The concept of recognized companies between the States arose. By the Companies Act Amendment Act 1974 (Qld): 6 Robuild Pty Ltd v Queensland Building Services Authority [2013] QCAT 197. 7 [2012] NTSC 44. 8 Section 28A. 9 (2009) 25 VR 366. 10 In Queensland, the Companies Act 1961. -- 4 of 10 -- 5 "(1) A recognised company which has established a place of business or commenced to carry on business within the State shall have a principal office within the State to which all communications and notices may be addressed and which shall be open and accessible to the public … between the hours of 9 o’clock … and 5 o’clock … each day, Saturdays, Sundays and holidays excepted. (2) A recognized company which has established a place of business or commenced to carry on business within the State shall within one month after doing so to lodge with the Commissioner notice of the situation of its principal office in the State."11 [22] By s 343C(3) of that Act if a recognised company had been a foreign company with a registered office in the State before it became a recognised company, the registered office would be deemed to be the principal office in the State. [23] I note the legislation did not deem a principal place of business, or any place of business, to be a principal office. [24] In 1981 the States entered into a co-operative scheme with respect to companies law and by the Companies (Application of Laws) Act 1981 (Qld) the Companies Act 1981 (Cth) became the applied law in Queensland. The previous provisions concerning recognized companies requiring principal offices from the 1961-2 legislation were incorporated into this new legislation12. [25] Under the general service provisions mentioned in the Act of 1981, s 529(1) specifically provided that a document might be served on a recognized company or on a recognized foreign company by leaving it at, or by sending it by post to, the principal office of that company13. [26] One should also note s 547, which provided that where the Act required a branch register to be kept by a company it was required to be kept at the principal office, or the principal place of business of the company. [27] The concepts of principal office and principal place of business are clearly separate and distinct under this legislation. [28] During the 1980s the various States conducted their own Corporate Affairs Commissions, from whom control was passed to a national body in the 1990s, the Australian Securities Commission (ASC), the predecessor of the current Australian Securities and Investment Commission (ASIC). [29] With the advent of national legislation and one national corporate regulator, the idea of recognized companies between State registries became redundant. [30] In my opinion it is clear the current reference in the Acts Interpretation Acts to service on a corporation at its principal office refers to service on recognized companies under old, repealed companies legislation. It is clearly not the 11 Section 343C. 12 Part XIII Div 4 – Recognized Companies and Recognized Foreign Companies 13 The Acts Interpretation Act 1901 (Cth) s28A was added in 1984, which provision includes service by mail on a corporation at its principal office, which concept of principal office had application and meaning at that time -- 5 of 10 -- 6 case that principal office is a variant or another descriptor of principal place of business. [31] That recognized companies are no longer relevant is no justification to arbitrarily interpret principal office to now mean or include principal place of business. Any such amalgam is up to the legislature. [32] As such I find service of the letter of 18 December 2012 by forwarding it to the principal place of business of Cyclone was not effective service in terms of s 39 of the Acts Interpretation Act 1954(Qld). Email Admissions [33] The Authority says, even so, Mr Thompson impliedly acknowledged in emails dated 2 January 2013 or 8 January 2013 or both, that the letter of 19 December had been received by those dates. [34] I am unable to draw such conclusions from the emails concerned. [35] Neither email mentions the letter of 18 December 2012. Neither refers to the amended Scope of Works. In both emails mention is made of the Authority’s reference number 3-3093-11. In the email of 8 January the writer comments he or she awaits a QCAT decision and that the Authority appears to have “moved forward to the next step”, but nothing more. [36] The reference number 3-3093-11 appears on the Authority’s letter of 18 December 2012. However that reference number also appears on the Authority’s letters to Cyclone of 23 January 2012 and 5 and 23 March 2012 and it is the file reference on the first Scope of Works. [37] In my opinion an admission as to service must be clear and unequivocal. The emails of 2 and 8 January 2013 fall far short of that. I do not accept them as proving the letter of 18 December 2012 was received by Cyclone prior to the return to the office of Mr Thompson on 14 January 2013. [38] Mr Thompson admits the letter of 18 December 2012 came to his attention on 14 January 2012. I accept that. Given he is the sole director and secretary of Cyclone, that equates to Cyclone’s attention. The object of service being to give notice to the party to whom it is directed to take appropriate steps as required, I find service was effected on that day14. The 28 day period set by s 86(2) of the QBSA Act runs from that date. Filing the Application for Review [39] Accepting the amended Scope of Works was received by Cyclone on 14 January 2013, Cyclone had until 11 February, 2013 to make an application to the Tribunal to review the amended Scope of Works. [40] It appears Mr Thompson forwarded an Application to Review a Decision in Form 23 to the Tribunal on or about 22 January 2013. It was received by the registry on 24 February 2013. Mr Thompson sent a payment of $265 to cover the filing fees. The actual filing fee was $275. 14 Polstar v Agnew (2007) 208 FLR 226. -- 6 of 10 -- 7 [41] The registry advised Mr Thompson, by an email on 24 January 2013, of the deficiency in funds and asked him to pay the full amount. The email additionally required "a copy of the decision in which you are seeking a review” to be filed. Significantly the email made specific reference to his “application to review a decision”. [42] Unfortunately, the Application to Review a Decision in Form 23 received was apparently returned to Mr Thompson on that day. No copy was kept on file. [43] In response to the registry email Mr Thompson filed a copy of the letter from the Authority dated 18 December 2012 and the first page (the relevant page) of the amended Scope of Works. Those two pages were stamped with the seal of the Tribunal and date stamped received 29 January, 2013. However Mr Thompson did not return the Form 23 document with those pages. [44] On 26 February 2013 Mr Thompson emailed the Tribunal to advise he was that day posting the filing fee of $275 by way of credit card authorisation together with an Application to Stay a Decision in Form 44 and an Application to Extend a Time Limit in Form 42. [45] Those documents were received in the registry, date stamped and sealed, on 26 February 2013. [46] By email dated 5 March, 2013 Mr Thompson asked the registry to confirm that his "application for extension of time and application for review together with credit card authorisation" had been received. [47] The registry emailed Mr Thompson on 14 March, 2013 to advise that the registry did not have on file his original Form 23 Application to Review a Decision. Mr Thompson was asked to scan and email to the registry his copy of the Form 23 together with a copy of the reviewable decision of the Authority as soon as possible. [48] Next day on 15 March 2013 Mr Thompson submitted by email an Application to Review a Decision in Form 23 which, however, only seems to have confused matters further. It was a copy of an application he had filed in the previous review proceedings the year before, bearing the old case number. Mr Thompson simply crossed out the original date in the document and wrote 15 March, 2013, crossed out the original particulars and added certain other very limited details in an endeavour to make the document relevant to extant amended Scope of Works application. [49] On 19 March, 2013 he followed this by submitting a copy Form 23 Application to Review a Decision dated 22 January, 2013. This copy was unsigned. Mr Thompson was asked to provide a signed and dated back page to the application. He did that later that day. Application to the Tribunal [50] The Authority submits the application to review the amended Scope of Works was not properly made until 19 March, 2013. Accordingly regardless of whether time runs from time of first receipt of post after 18 December 2012, or from 14 January 2013,they say the applicant is out of time. -- 7 of 10 -- 8 [51] It has previously been held by the Tribunal that the 28 day period prescribed in s 86(2) of the QBSA Act is mandatory and an application to review a decision of the Authority brought after that time is outside the jurisdiction of the Tribunal15. [52] That position has very recently been reversed in the District Court decision of QBSA v Russell Ian Watkins [2013] QDC 198. [53] Leaving aside QBSA v Russell Ian Watkins for the moment, the issue for determination is, when did Cyclone apply to the Tribunal for review? That conclusion may well have bearing if one is to apply QBSA v Russell Ian Watkins as well. [54] By s 33(2) of the QCAT Act an application to the Tribunal authorised to be brought by an enabling Act must (a) be in a form substantially complying with the rules (b) state the reasons for the application (c) be filed in the registry. [55] The registry email of 24 January 2013 referred to Cyclone’s application for review. Mr Thompson emailed the Tribunal on 19 March 2013 to say he was “re-sending” a copy of the original Form 23. [56] I accept that the Application for Review filed 19 March 2013 is a copy of the original Application forwarded to the Tribunal by Mr Thompson on or about 22 January 2013 and received 24 January 2013. It bears the date 22 January 2013. It is a copy, which perhaps explains why the document received by the Tribunal on 19 March 2013 has no signature. A signature page was forwarded later that day at the request of the Tribunal. [57] It is unclear whether the Application originally forwarded on 22 January 2013 was signed. I conclude on balance it most probably was, given the deficiencies identified in the registry email of 24 January 2013 was limited to the shortfall of $10 in the filing fee and that there was no copy of the decision to be reviewed enclosed. I consider that if the Application had not been signed this would also have been noted. It was not. [58] The Application should not have been returned to Cyclone. There is nothing in the registry file to explain the circumstances of return. It should have been kept on file pending payment of the additional $10 and provision of a copy of the review decision. [59] A copy of the review decision was provided by Mr Thompson on 29 January 2013. It bears the seal of the Tribunal. Why the original Application was not also forwarded with that by him has not been explained by Mr Thompson. It would have saved a great deal of difficulty. 15 Smith v Queensland Building Services Authority [2010] QCAT 448; Cardillo v Queensland Building Services Authority [2011] QCAT 574; Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCAT 180. -- 8 of 10 -- 9 [60] I conclude that by 29 January 2013 Cyclone had complied with the requirements of s 33(2)(a) and (b) of the QCAT Act. [61] By s 31(1) of the QCAT Rules a document is filed when the registrar records the document and stamps the Tribunal seal on it. By s 31(2) after a document is filed the stamp of the Tribunal’s seal must be added to any accompanying document. The seal of the Tribunal was affixed to the copy decision notice received in the registry on 29 January 2013. That was a document requested by the registry for inclusion with the Application received 24 January 2013. [62] Arguably the Application received 24 January 2013 has status as a document “filed” prior to 29 January 2013 because the registry affixed its seal to an attachment to an Application in the circumstances prescribed by s 31(2) of the Rules. Adding a date of receipt stamp also constitutes recording the document as required by s 31(1). [63] In my opinion the sealing of the attachment to the Application on 29 January 2013 is further evidence of the lodgement and acceptance of the Application by the registry prior to 29 January 2013. [64] In Smith Senior Member Oliver said at [20]: “What seems clear in this application, is that the applicant was intent on reviewing the Authority’s decision, lodged an application with the Tribunal in time, but did not pay the prescribed fee. The registry accepted the application because the original was on the Tribunal’s file.” [65] The original application in Smith had not been sealed. Senior Member Oliver said of that: “The stamping of the Tribunal seal to the application is a procedural requirement, in circumstances where the application has been lodged and accepted by the Tribunal, in the absence of the fee being paid.16” [66] In Smith the Tribunal’s discretion, pursuant to s 61 of the QCAT Act was exercised to waive this procedural requirement. [67] This matter seems close in circumstance to that of Smith save here the registry did not keep a copy of the Application received 24 January 2013. I conclude it is clear that Cyclone was intent on reviewing the Authority’s amended Scope of Works and lodged an application within time and paid a filing fee deficient in a minor amount only. The sealing of the attachment to the Application and the recording of that document with date stamp lends weight and legitimacy to this conclusion. [68] In these circumstances I conclude Cyclone applied to the Tribunal for review of the Amended Scope of Works prior to 29 January 2013 and the Application to Review a Decision bearing filing date 19 March 2013 constitutes the Application for Review hard copy document in this matter. [69] In so far as necessary I determine the failure to seal the said Application to Review a Decision and retain a copy in the registry prior to 29 January 2013 constitutes a procedural defect only and compliance therewith should in the 16 Smith at [19] -- 9 of 10 -- 10 circumstances be waived exercising the discretion granted by s 61(1)(c) of the QCAT Act. Extension of Time [70] In light of my finding that Cyclone applied for review within time, it is not necessary to determine an application for extension of time pursuant to s 61 of the QCAT Act applying QBSA v Russell Ian Watkins. Had it been necessary however, it would be an appropriate matter to exercise the discretion in favour of the applicant. The registry was responsible for the filing error in large part, not the applicant. Mr Thompson made timely application for review. The Authority accepted the insurance claim of the owner under the statutory scheme on 1 February 2013 and thereby bound itself to pay for the work to be performed 10 days before the time to apply to the Tribunal for review expired anyway. Any prejudice to the Authority now runs to costs of the litigation which may be remedied with appropriate cost orders. [71] The matter should proceed to hearing. -- 10 of 10 --