Cavalier Homes Brisbane Pty Ltd v Queensland Building Services Authority [2012] QCAT 6

CITATION: Cavalier Homes Brisbane Pty Ltd v Queensland Building Services Authority [2012] QCAT 6 PARTIES: Cavalier Homes Brisbane Pty Ltd (Applicant) v Queensland Building Services Authority (Respondent) APPLICATION NUMBER: GAR101-11 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr Bridget Cullen, Member DELIVERED ON: 4 January 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Cavalier Homes’ Application to extend the time limit for filing an Application to Review the 16 December 2010 decision of the QBSA is dismissed. CATCHWORDS: ADMINISTRATIVE REVIEW MATTERS – Extension of time to file review application – Review of decision of Queensland Building Services Authority – Application for extension of time to file dismissed Queensland Building Services Authority Act 1991, ss 86(1)(f), 87 Queensland Civil and Administrative Tribunal Act, ss 33, 61 Hunter Valley Developments Pty Ltd v The Honourable Barry Cohen, Minister for Home Affairs (1984) 3 FCR 344 McClintock v QBSA [2010] QCAT 340 Gallagher v QBSA [2010] QCAT 383 Choice Homes Queensland Pty Ltd v QBSA [2000] QBT 121 -- 1 of 6 -- 2 Body Corporate “Avalon on Rawlins” v QBSA [2008] QCCTB 40 Sherred v QBSA [2006] QCCTB 58 Hart v QBSA [2008] QCCTB 163 Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 Lucic v Nolan (1982) 45 ALR 411 APPEARANCES and REPRESENTATION (if any): No appearances, decision made on the papers. REASONS FOR DECISION Overview [1] This is an application by Cavalier Homes Brisbane Pty Ltd for an extension of time within which to file an application to review a decision of the Queensland Building Services Authority (“QBSA”). [2] Cavalier Homes seeks to review a decision made by the QBSA on 16 December 2010 that rectification works completed by Cavalier Homes after the QBSA had issued Cavalier Homes with a Direction to Rectify were not completed to a satisfactory standard. [3] It is beyond contention that the direction to rectify issued by the QBSA on 16 December 2010 is a decision that is subsequently reviewable, by QCAT1. However, in order to proceed with a review application, Cavalier Homes requires an extension of time within which to file its review application. [4] In the ordinary course of events, a review application such as this must be made within 28 days after the “relevant day”.2 The relevant day is defined to mean “the day after the applicant is notified of the decision”.3 [5] In its Application to review a decision, filed on 12 April 2011, Cavalier Homes says that it received the QBSA’s decision on 20 December 2010. The date of filing is well beyond the 28-day timeframe prescribed by the QCAT Act, such that Cavalier Homes first requires an extension of time within which to file. [6] In making this application for an extension of time within which to file its review application, Cavalier Homes seeks to rely upon s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”). Section 61 permits the tribunal, by order, to: 1 Queensland Building Services Authority Act 1991, ss 86(1)(f) and 87. 2 QCAT Act, s 33. 3 QCAT Act, s 33(4)(a). -- 2 of 6 -- 3 extend or shorten a time limit fixed by this Act, an enabling Act or the rules. The law relating to extensions of time, in an administrative law context [7] The QBSA, in written submissions opposing an extension of time, has drawn my attention to the decision of Justice Wilcox in Hunter Valley Developments Pty Ltd v The Honourable Barry Cohen, Minister for Home Affairs (1984) 3 FCR 344. Therein, Justice Wilcox set out several factors that should be considered when determining applications to extend time, in an administrative law context. Summarised, these are:  An acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend.4  Any action taken by the applicant, other than by making an application for review under the Act, to inform the decision maker that the finality of the decision is contested. This reflects public policy supporting a need to ensure finality in disputes, and to prevent difficulties that result from fading memory as time languishes.5  Whether there has been any prejudice to the respondent occasioned by the delay.6 However, the mere absence of prejudice is not enough to justify the grant of an extension. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.7  The merits of the substantial application.8  Considerations of fairness.9 [8] The QBSA points out that these principles have been adopted not only by QCAT10, but also by QCAT’s predecessors, the Commercial and Consumer Tribunal and the Queensland Building Tribunal. Application of ‘Hunter Valley’ principles to this application Acceptable explanation for the delay [9] The primary argument advanced by Cavalier Homes is that it was “in negotiations” with both Mr Chris Boyle and Mr Leslie Brain (Dispute Resolution Manager) of the QBSA, and believed that the matter could 4 Hunter Valley Developments Pty Ltd v The Honourable Barry Cohen, Minister for Home Affairs (1984) 3 FCR 344 at 18. 5 Ibid at 19. 6 Ibid at 20. 7 Ibid at 21. 8 Ibid at 22. 9 Ibid at 23. 10 For example, McClintock v QBSA [2010] QCAT 340; Gallagher v QBSA [2010] QCAT 383; Choice Homes Queensland Pty Ltd v QBSA [2000] QBT 121; Body Corporate “Avalon on Rawlins” v QBSA [2008] QCCTB 40; Sherred v QBSA [2006] QCCTB 58; Hart v QBSA [2008] QCCTB 163. -- 3 of 6 -- 4 have been resolved without resort to QCAT. This view is not shared by the QBSA; rather, the QBSA expressly denies that there were any negotiations in the aftermath of its 16 December 2010 decision. [10] In a signed statement11, Mr Brain states that he recalls a brief discussion with Mr Boyle, wherein they agreed that it would be more appropriate for Mr Brain to manage the Cavalier Homes matter. Further, Mr Brain explains that there is not one scintilla of evidence on the QBSA’s files indicating that there were “negotiations”, nor even discussions with Cavalier Homes after 16 December 2010. [11] Mr Brain explains that the QBSA utilises a software program called “Contractor Management System” to record case notes about the progress of QBSA files, and that it is the ordinary (and required) practice of QBSA employees to include details of any telephone conversations relating to the matter. Exhibit 21 to Mr Brain’s statement supports his statement that there were no further or ongoing discussions with Cavalier Homes, yet exhibit 21 does reveal that there were several further phones calls to the owners of the property on which the allegedly unsatisfactory works had been performed. [12] Viewing its argument at its highest, I might find that Cavalier Homes mistakenly believed that further negotiations with the QBSA were still ensuing. However, even if I did so find, a one-sided perception that there were negotiations on foot does not afford any sufficient basis to justify an extension of time. The 28-day time limit is not something to be ignored12, particularly in circumstances where the adverse decision actually advises the prospective applicant of its right to review the decision before QCAT.13 [13] Cavalier Homes also makes reference to there being extensive rain in November and December 2010; the January 2011 Queensland flood disaster, and what it calls the “21 day building industry shutdown” from 22 December 2010 until 11 January 2011. As the work that was the subject of the Direction to Rectify was to be completed by 1 October 2010, I fail to see how the heavy rains in November/December together with the floods in January 2011 could have had any bearing whatsoever on Cavalier Homes’ ability to file its review application within time. [14] As for the existence of otherwise of an alleged “industry wide shutdown”, I agree with the QBSA that there is no officially scheduled industry-wide closedown. That said however I think it safe to observe that many tradespeople in the building and construction industry do cease work for a number of weeks in the Christmas/New Year period. Regardless of that phenomena, Cavalier Homes did not file its review application until 12 April 2011, months after the end of the unofficial industry shutdown. 11 Statement of Mr Leslie Brain, 3 August 2011. 12 See the decisions in Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550 and Lucic v Nolan (1982) 45 ALR 411 at 416 on this point. 13 Decision of the QBSA dated 16 December 2010, paragraph 4. -- 4 of 6 -- 5 As such, these arguments do not support the granting of an extension of time. Actions taken by Cavalier Homes [15] Other than claiming to have been in negotiations with the QBSA, as referred to, above, Cavalier Homes has produced no evidence indicating that it took any steps to advise the QBSA that it intended to dispute the 16 December 2010 decision. In my view, this lends weight to the QBSA’s argument that the extension should not be granted. Questions of Prejudice and the underlying Merits of the Application for Review [16] If the tribunal were to allow Cavalier Homes an extension of time within which to file its application to review the decision of the QBSA made on 16 December 2010, there would be considerable prejudice to the QBSA. On 19 October 2010, the QBSA notified Cavalier Homes of a potential debt arising under the QBSA’s Statutory Insurance Scheme, should it incur costs to have another contractor fix the defective work. Following receipt of this letter, there were communications between the parties in relation to completion of the defective works. Ultimately, following an inspection on 14 December 2010, the QBSA determined that the rectification works remained defective, and 2-days later informed Cavalier Homes of its decision that the Direction to Rectify had not been satisfactorily complied with. [17] On 3 February 2011, the QBSA advised Cavalier Homes that an insurance claim of $21,895.45 had been approved.14 The owners of the property in reliance upon the QBSA’s representations, then hired another contractor to complete the rectification works, and as at 29 June 2011, the works were complete.15 [18] The prejudice to the QBSA, if an extension of time to review were granted, is significantly higher than that to the applicant. If Cavalier Homes were successful on the merits of a review application, the fact that the works are now complete would have the effect of denying the QBSA the opportunity to present further evidence in support of its position that the works were not of a satisfactory standard. This would be the seminal issue in any ensuing review application. I agree with the QBSA that Cavalier Homes’ arguments that the Direction to Rectify was unreasonably issued and were not defective in the first place and that the items in the Scope of Works were not reasonable or necessary are not relevant matters in any forthcoming review. This is because the decision Cavalier Homes wants to review relates only to whether the rectification previously attempted by Cavalier Homes was satisfactory. 14 Statement of Mr Leslie Brain, 3 August 2011, Annexure 19. 15 Ibid, Annexure 21. -- 5 of 6 -- 6 [19] Further, if Cavalier Homes were successful on its review application, the QBSA would be in a position where it has expended insurance resources unnecessarily. The reasons given by Cavalier Homes for its late lodgement are insufficient and inadequate. When coupled with the polar- opposite evidence of the QBSA, and the extent of prejudice to the QBSA should an extension of time be granted, the granting of an extension would not only be inappropriate, it would be unjust. Orders [1] Cavalier Homes’ Application to extend the time limit for filing an Application to Review the 16 December 2010 decision of the QBSA is dismissed. -- 6 of 6 --