Review of QBCC decisions – part 2

Under the Queensland Building and Construction Commission Act 1991 (Act) the Queensland Building and Construction Commission (QBCC) is empowered to make a variety of decisions such as but not limited to:

  • issuing to a builder a notice to rectify defective domestic building work;
  • disallowing a claim under the statutory insurance scheme wholly or in part;
  • determining that a person is an excluded individual for licensing purposes.

Being human, the officers of the QBCC when making a decision do not always get it right.

For this reason, the Act sets out processes that enable an aggrieved stakeholder to have a decision reviewed internally by QBCC, and if deemed appropriate, externally by the Queensland Civil and Administrative Tribunal (QCAT).

However, in both instances strict time limits for seeking a review apply.

External Review by QCAT

Section 86 of the Act contains a long list of decisions capable of internal review, the most common review applications dealing with directions to rectify alleged defective domestic building work and claims made upon the statutory insurance scheme.

Under section 87 of the Act a person affected by a reviewable decision of QBCC may apply under the provisions of the Queensland Civil and Administrative Tribunal Act 1991 (QCAT Act) for a review of the decision.

QCAT in its review jurisdiction under section 24 of the QCAT Act can:

  • confirm or amend the decision; or
  • set aside the decision and substitute its own decision; or
  • set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions QCAT considers appropriate.

Under section 33 of the QCAT Act an application for review must be filed within 28 days of the day the applicant is notified of the decision.

However, section 61 of the QCAT Act allows QCAT a discretion to:

  • extend a time limit fixed for the start of a review application under the Act; or
  • extend or shorten a time limit fixed by the QCAT Act, the Act or the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules); or
  • waive compliance with another procedural requirement under the QCAT Act, the Act or the QCAT Rules.

That said, it was recently observed in Stevens v Queensland Building and Construction Commission [2020] QCAT 432 that QCAT is unable to extend time if it would cause prejudice or detriment to a party which was unable to be remedied by an order for costs or damages.

When exercising its discretion whether or not to grant an extension of time QCAT must consider the following factors:

  • whether a satisfactory explanation (or ‘good reason’) is shown to account for the delay;
  • the strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed on the preliminary material);
  • prejudice to adverse parties;
  • the length of the delay, noting that a short delay is usually easier to excuse than a lengthy one;
  • overall, whether it is in the interests of justice to grant the extension, this usually calling for some analysis of the above factors considered in combination.

Takeaways

When it comes to any litigation, especially any form of building dispute litigation, parties need to keep in mind the Latin maxim vigilantibus non dormientibus aequitas subvenit – the law supports the waking, not the sleeping.

While it is possible to cure a failure to meet a timeframe imposed by either the Act or the QCAT Act, the risk, cost and inconvenience in achieving the cure is best avoided by taking prompt legal advice in the first instance.  Trying to save on front-end costs often results in greater back-end outlays.

Further references

Cases

Stevens v Queensland Building and Construction Commission [2020] QCAT 432

Legislation

Queensland Building and Construction Commission Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Related articles by Dundas Lawyers

Review of QBCC decisions – part 1

Review of QBCC decisions – part 3

Review of QBCC decisions – part 4

Further information

If you need assistance regarding external review applications to QCAT, please telephone me for an obligation free and confidential discussion.

 

Mitch Brown - Dundas LawyersMitch Brown Dip.T.,BA.,LL.B.,MQLS.
Legal Practice Director
Telephone: (07) 5646 9174
Mobile: 0420 205 105
e: mbrown@dundaslawyersgc.com.au

 

Disclaimer

This article contains general commentary only. You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances. 

Send this to a friend