Colmer v Queensland Building Services Authority [2010] QCAT 358

CITATION: Colmer v Queensland Building Services Authority [2010] QCAT 358 PARTIES: Mr Steven John Colmer v Queensland Building Services Authority APPLICATION NUMBER: GAR225-10 MATTER TYPE: General administrative review matters HEARING DATE: 26 July 2010 HEARD AT: Brisbane DECISION OF: K O’Callaghan – Senior Member DELIVERED ON: 26 July 2010 DELIVERED AT: Brisbane ORDERS MADE: Stay refused CATCHWORDS : Stay of decision to direct rectification of defective building work – not in the interest of home owners to stay the decision. Applicant provided no material as to how his interests would be effected in the event the stay was refused APPEARANCES and REPRESENTATION (if any): The hearing was held on the papers in the absence of the parties -- 1 of 3 -- GAR225-10 / Page 2 of 3 REASONS FOR DECISION 1. The homeowner had lodged a complaint with the Queensland Building Services Authority (QBSA) in January 2010 concerning roof replacement works carried out by the Applicant for the homeowner. 2. Various inspections of the works by the homeowner, the QBSA and the Applicant took place. On 8 April 2010 the QBSA issued a direction to the Applicant to carry out certain rectification works (the first direction). 3. The Applicant carried out works pursuant to the directions. 4. The QBSA had engaged a roofing consultant to prepare a report in the relation to the works carried out by the Applicant. 5. The report indicated 7 of the 8 items in the direction to rectify had been addressed however the report had identified 2 other concerns with the roof namely – i) The roof pitch was below the recommended minimum pitch ii) Sheets were not weathered at gutter line which would allow water to run back under the sheets 6. On 11 June 2010 the QBSA issued another direction to rectify which directed the Applicant to rectify these items (the second direction). 7. On 8 July 2010 the Applicant lodged an application to review the “pitch of roof” decision. He also filed an application to stay the decision. 8. As the QBSA points out in their submissions it is not entirely clear which decision the Applicant is seeking to review, that is, the first direction or the second direction. On balance from the wording of the Applicant’s review and stay application it appears that he is seeking to review the second direction. 9. The QBSA opposes the stay on the basis the defects identified are allowing water penetration into the property and it may adversely affect the health and safety of the homeowner because there is evidence of infestation of vermin (ants). Further, the water penetration is resulting in consequential damage to the floor coverings, walls and ceiling of the dwelling. They point out the rectification of the floor coverings is not recoverable by the homeowner under the statutory insurance scheme. 10. Under section 22(4) of the Queensland Civil and Administrative Tribunal Act 2009 the Tribunal can only make an order staying the operation of the reviewable decision if it considers the order is desirable having regard to the interests of any person whose interests may be affected by the making of the order or the order not being made, any submission made to the Tribunal by the decision maker for the reviewable decision and the public interest. 11. The Applicant in his stay application suggests the stay should be granted because he was given insufficient time to deal with the direction to rectify. He has provided -- 2 of 3 -- GAR225-10 / Page 3 of 3 no material or information to the Tribunal as to how his interests would be affected if the stay were not granted. The Authority has filed an affidavit of an employee Mr Gold. On the basis of Mr Gold’s evidence I am satisfied that the Applicant was in fact given the opportunity to request an extension of time to comply with the direction to rectify but failed to do so. 12. I am satisfied that if the stay were granted the interests of the homeowner would be adversely affected by the water entry into the property and consequential damage which is not recoverable under the statutory insurance scheme. 13. I am not satisfied in the circumstance that is desirable to stay the operation of the reviewable decision. 14. I dismiss the application for a stay. -- 3 of 3 --