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Queensland Building and Construction Commission v Watkins [2014] QCA 172 (13/8692) Margaret McMurdo P and Morrison JA and Douglas J 25/07/2014

Full-text: QCA14-172.pdf

Catchwords

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the appellant sought summary judgment against the respondent in relation to a sum of money said to be payable under the Queensland Building Services Authority Act 1991 (Qld) – where the respondent then applied to the Queensland Civil and Administrative Tribunal challenging the appellant’s approval of an insurance claim against the respondent – where this application was brought outside of the statutory time limit – whether QCAT has the power to extend the time in which to make such an application – whether summary judgment should have been granted

Summary Notes

General Civil Appeal – where the appellant sought summary judgment against the respondent in relation to a sum of money said to be payable under the Queensland Building Services Authority Act 1991 (Qld) – where the respondent then applied to the Queensland Civil and Administrative Tribunal challenging the appellant’s approval of an insurance claim against the respondent – where this application was brought outside of the statutory time limit – whether QCAT has the power to extend the time in which to make such an application – whether summary judgment should have been granted – where QCAT’s power to review such a claim about the scope of works was not available if 28 days had elapsed from the date of service of a decision to direct rectification or completion of work or since a decision about the scope of works to be undertaken had been served on the building contractor – where the respondent said in an affidavit before the learned District Court judge that he had not received a completed scope of works statement from the appellant “although they keep telling me that I have” – where the respondent was clearly on notice of the intention to take proceedings against him and did not seek then to initiate proceedings in QCAT – where the learned primary judge refused the application for summary judgment at that stage because he was persuaded that QCAT should have the opportunity to consider the application before it for an extension of time – where his reason for that was that there was an argument available that QCAT could extend the time, which he regarded as an issue fundamental to the appellant’s right of action – where the language of the section, in prescribing that QCAT must not review decisions of the nature described in the section if 28 days have elapsed since the relevant decision or direction, makes it correct to conclude that it is a mandatory provision having substantive rather than procedural effect – where the compelling inference from the structure of the Act is that applications for review of such matters should be made expeditiously to avoid further delay in the completion or execution of rectification work – where applying the principles from Mahony v Queensland Building Services Authority [2013] QCA 323, leads to the conclusion that, on the evidentiary material raised before the learned primary judge, no substantive defence existed to this statutory claim. Appeal allowed. Orders below set aside and instead judgment is given for the appellant against the respondent for its claim of $153,917.95 with interest. Procedural orders in relation to costs.