Cornpig Pty Ltd v Queensland Building Services Authority [2011] QCAT 255

CITATION: Cornpig Pty Ltd v Queensland Building Services Authority [2011] QCAT 255 PARTIES: Cornpig Pty Ltd v Queensland Building Services Authority APPLICATION NUMBER: GAR029-11 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Member DELIVERED ON: 3 June 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Application to extend time dismissed. 2. Application to review a decision dismissed. CATCHWORDS: BUILDING MATTERS – where Authority issued scope of works and decision that homeowner validly terminated contract – where builder filed application for review 2 months later – where application to extend time – whether discretion should be exercised Queensland Civil and Administrative Tribunal Act 2009, ss 61(1), 61(3) Queensland Building Services Authority Act 1991, s 86(2)(c) Smith v Queensland Building Services Authority [2010] QCAT 448 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 3 -- 2 REASONS FOR DECISION [1] On 7 February 2011, Cornpig filed an application to review the Authority’s decision of 22 October 2010. The Authority issued a scope of works and determined that that the homeowner properly terminated a contract for residential construction work. On 27 April 2011, Cornpig filed an application to extend time for the filing of its application. [2] To the extent that the application to extend time relates to the scope of works, it must fail. Section 86(2)(c) of the Queensland Building Services Authority Act 1991 provides that the tribunal cannot review a decision in relation not a scope of works if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, fined an application for review. As the tribunal has pointed out1: Section 86(2) is a provision relevant to the substantive issue of whether jurisdiction exists to review a decision of the QBSA. Failure by a prospective applicant to file an application within the statutorily prescribed period of 28 days cannot be "cured" or "waived" by the operation of s.61(1) of the QCAT Act. [3] Cornpig did not file an application to review the scope of works within 28 days of receiving the decision. [4] The tribunal does have a discretion to extend time for filing the application for review of the decision about termination: s 61(1) Queensland Civil and Administrative Tribunal Act 2009. That relief is not available to a party if to do so would cause prejudice or detriment not able to be remedied by an appropriate order for costs or damages: s 61(3) QCAT Act. [5] In determining any application for an extension of time, the reasons for the party’s failure to comply are a relevant consideration. Cornpig says there are many reasons for not filing the application within time all of which only became evident in late January 2011: a) It believed the work had been taken out of its hands. b) It believed that the Authority’s estimate to complete the work was inflated and the Authority has not considered the scope of works in the original contract. c) The lack of quotes for the work is unfair. d) There is an allegation of a conflict of interest. e) Cornpig does not agree with the Authority’s assessment of the rectification works required on the deck; or the concreting of the posts. [6] The Authority’s chronology notes that Cornpig did not file an application to review a direction to rectify dated 6 August 2010. Although this application is couched as an application to review the decision of 22 October 2010, it is apparent that it is really a belated attempt to review the direction to rectify and/or the decision to engage another contractor. In the application itself, Cornpig refers to matters such as: 1 Smith v QBSA [2010] QCAT 448 at [30]. -- 2 of 3 -- 3 a) The lack of access to the site and the extreme weather conditions. b) The cost of completing the works. c) The terms of the contract. d) That it would like the “failure to rectify” notation removed from its licence. [7] There is no cogent reason for Cornpig’s delay in filing the application. Since the decision was issued, the Authority has approved the homeowner’s claim under the statutory insurance scheme and the homeowner has entered into a contract for the completion of the works. These are not matters that can be altered or remedied by an order of the tribunal, given that neither the homeowner nor the new contractor is a party to this application. [8] Cornpig has left its decision to challenge the Authority’s decision far too late. It has not adequately explained its delay and the events that have occurred in the interim cannot be undone by an order of the tribunal. Cornpig’s application to extend time must fail and the substantive application should be dismissed. -- 3 of 3 --