Review of QBCC decisions – part 3

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, or not issuing, to a builder a notice to rectify defective domestic building work;
• allowing, or disallowing, a claim under the statutory insurance scheme wholly or in part; and
• determining that a person is an excluded individual for licensing purposes.

The Act sets out processes that enable an aggrieved stakeholder to have a decision reviewed.

Earlier articles by Dundas Lawyers have looked at the time frames for applying for an internal review by QBCC and external review by the Queensland Civil and Administrative Tribunal (QCAT).

In both instances strict time limits for seeking a review apply, evidenced by a number of decisions by QCAT.

Pantha Homes v QBCC

In the case of Pantha Homes QLD Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 456, the Applicant had been issued with a direction to rectify defective building work by QBCC but failed to apply for an internal review to QBCC within the statutory 28-day time limit pursuant to section 86B(a)(i) of the Act.

When QBCC refused to exercise the discretion under section 86B(a)(ii) of the Act to extend the time for an internal review application, the Applicant pursuant to section 87 of the Act applied to QCAT to extend the 28-day time limit to allow its internal review application to proceed.

QCAT in granting the application held that a number of factors needed to be considered when ascertaining whether or not to grant an extension, namely:

• has a satisfactory explanation been given to account for the delay?;
• the strength of the Applicant’s case;
• will other parties be prejudiced?;
• the length of the delay; and
• is it in the interest of justice to grant an extension?

The factors to be considered upon an application to extend the time within which to apply for internal review of a decision by QBCC also apply for a time extension application to QCAT for an external review.

The application of these factors is evidenced in a number of recent QCAT decisions.

Stevens v QBCC

In Stevens v Queensland Building and Construction Commission [2020] QCAT 432, the external review application to QCAT was lodged six weeks outside of the 28-day statutory time limit under section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

The Tribunal in dismissing the application, noted in respect of each of the factors to be considered that:

• a statement to the effect that the Applicant wanted to advise QBCC he would like to rectify the work was no explanation for the delay in applying for the external review;
• in the context of a 28-day time limit for filing an external review application, a delay of six weeks was viewed as a considerable delay;
• the Applicant’s case did not appear strong as he seemed to acknowledge the work performed was in fact defective;
• QBCC could not point to any prejudice suffered by any party due to the delay; and
• the interests of justice did not favour an extension, given the Tribunal’s obligation under section 3 of the QCAT Act to deal with matters fairly, economically and quickly.

The Tribunal noted that while the absence of prejudice to any party pointed in favour of granting an extension, the weight of the other factors favoured the application being dismissed.

Arian v QBCC

In Arian v Queensland Building and Construction Commission [2020] QCAT 445, the external review application to QCAT was lodged only two weeks outside of the 28-day statutory time limit, but again there was no explanation why there had been a delay in filing the application within time.

More telling however, was the fact the Applicant had not put forward any evidence demonstrating that the matters raised by the certifier which had resulted in the direction to rectify being issued by QBCC were in any way incorrect or misconceived.

On this basis the Tribunal held the application lacked merit, was doomed to fail and an extension of time should not be granted.

Takeaways

The above cases make it clear that to get an extension of time within which to have a QBCC decision reviewed:

• there must be cogent reasons explaining any delay – tardiness of itself will generally be fatal;
• there must at least be reasonable prospects of success;
• the shorter the delay, the less likely it is other parties will be disadvantaged / prejudiced;
• the longer the delay, the less likely it is that an extension will be granted; and
• considering the interests of justice usually involves analysis of the other factors in combination.

Links and further references

Cases

Pantha Homes QLD Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 456

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

Arian v Queensland Building and Construction Commission [2020] QCAT 445

Legislation

Queensland Building and Construction Commission Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009

Related insights

Review of QBCC decisions – part 1

Review of QBCC decisions – part 2

Review of QBCC decisions – part 4

Further information

contact Dundas Lawyers Gold Coast for a confidential and obligation-free discussion:

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.