CBQ Pty Ltd v Queensland Building Services Authority [2010] QCAT 344

CITATION: CBQ Pty Ltd v Queensland Building Services Authority [2010] QCAT 344 PARTIES: CBQ Pty Ltd v Queensland Building Services Authority APPLICATION NUMBER: GAR192-10 MATTER TYPE: General administrative review matters HEARING DATE: 15 July 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 15 July 2010 DELIVERED AT: Brisbane ORDERS MADE: Stay refused. CATCHWORDS : STAY - REVIEW OF ADMINISTRATIVE DECISION – direction to rectify defective work – where defective work alleged to adversely affect safety of residents APPEARANCES and REPRESENTATION (if any): The hearing was held on the papers in the absence of the parties. -- 1 of 3 -- REASONS FOR DECISION 1. In August 2009 the Queensland Building Services Authority (QBSA) received a complaint from the Docks on Magnetic Harbour Body Corporate as to defective work alleged to have been performed by CBQ Pty Ltd at a property located at 13 Terrace Place, Nelly Bay. 2. One aspect of the defective work relevant to the application before the Tribunal was described in the following words: “Paving has subsided everywhere around The Docks, leaving a dangerous, uneven surface for people to walk on.” A second aspect of defective work was described as follows: “The surface of this driveway is concave, with the result that the reticulation system leaves large pools of water nearly all day, resulting in a very slippery, muddy and dangerous surface.” 3. On 25 February 2010 the QBSA sent a letter to CBQ Pty Ltd requesting rectification work to be carried out within 84 days. On 20 May 2010 the QBSA issued a direction requiring rectification of the following defective building work within 28 days: rectify the defective installed paving around the Docks that has failed, being a health and safety issue for the occupants and rectify the defective installed concrete driveway around the Docks that allows water to pond, being a health and safety issue for the occupants. 4. CBQ Pty Ltd is seeking a review of the direction notice and has sought an order staying the operation of the direction notice from the Tribunal on the grounds that a stay will prevent prejudice to any of the parties, that the liability for paving is currently the subject of dispute in the District Court and that the driveway in question remains serviceable. 5. The QBSA opposes a stay of operation of the direction notice on the grounds that the defective work that is the subject of the direction notice adversely affects the health and safety of occupants of the building complex, that the QBSA has a statutory duty to regulate the building industry in a way that achieves a reasonable balance between the interest of the building contractor and the building owners/occupants and that BCQ Pty Ltd has had more than a reasonable opportunity to carry out the rectification work. 6. This Tribunal has power to grant a stay of the operation of the direction. Section 22 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) provides that the Tribunal can make an order to stay a decision only if it considers it desirable after having regard to the interests of any person whose interests may be affected by the making of, or declining of, a stay order, having regard to any submissions made to the Tribunal by the decision maker and having regard to the public interest. 7. CBQ Pty Ltd has not provided any specific information to assist the Tribunal in considering how its interests will be affected in the event that a stay of the direction notice is not made. In the absence of this information, the Tribunal is not able to conclude that the interests of CBQ Pty Ltd, apart from the financial impact of carrying out the rectification work, will be adversely affected if a stay is refused. The extent of the financial impact -- 2 of 3 -- cannot be determined on the sparse information provided to support the stay application. 8. In contrast, the QBSA has provided information as to how a stay may adversely affect the interests of the occupants of the property. The QBSA submitted that the occupants of the building are being subjected to a serious trip and slip hazard by the presence of loose pavers and pooled water in subsided sections of the car and pedestrian access areas of the property. The QBSA’s submissions that the presence of loose pavers and areas of pooled water has created a health and safety issue was not challenged by CBQ Pty Ltd. 9. The Tribunal accepts the submissions made by the QBSA that the presence of loose pavers and areas of pooled water has created a health and safety issue for the occupants of the property. The Tribunal finds that the interests of the occupants are being adversely affected by a serious trip and slip hazard resulting from the presence of loose pavers and areas of pooled water at the property. 10. It is adverse to the interests of the occupants for a stay of the operation of the direction notice to be granted as a stay will result in further delays in carrying out of rectification work to remove the risks to the safety of the occupants when going about their daily lives. 11. It is in the public interest that the QBSA is able to conduct its statutory duty of regulating the building industry with all reasonable diligence and that its functions, while subject to review by this Tribunal, are not unnecessarily impeded in ways that would tend to undermine the integrity of the scheme for issuing directions to rectify work for the protection of consumers and the public. 12. The Tribunal has not been satisfied that it is desirable in this case to make an order to stay the operation of the direction notice to rectify work. The stay application is dismissed. -- 3 of 3 --