McNab Constructions Australia P/L v Queensland Building Services Authority [2013] QSC 57

(a) a substantial loss will be incurred by, or a significant hazard will be caused to the health or safety of, a person because of the defective building work; or

(b) the defective building work will cause a significant hazard to public safety or the environment generally.

(4) Subject to subsection (3), the period stated in the direction must be a period the authority considers to be appropriate in the circumstances.

(10) A person who fails to rectify building work as required by a direction under this section is guilty of an offence.

**[2] The respondent issued 15 directions to rectify between 3 October 2007 and 15 January 2009. It then issued a further 22 directions dated 17 January 2013. The point taken by the applicant is that the period for rectification stated in each of the directions is not at least 28 days - see s 72(3) above.

[3] Each direction to rectify is set out very much like a letter. The format changed over time, but essentially the matters relevant to this application remained the same. In the first paragraph of the documents a direction is given by the respondent to the applicant to perform works which are particularised below. In each case there is a sentence such as, "The Time Period for Completion is TWENTY EIGHT (28) days from the date hereunder", or, in the case of the later directions, "The time period for completion is Twenty Eight Days (28) days from the date of this document". Then, adjacent to the space where the document is signed, is a small printed box which allows someone to write or sign their name next to the words, "posted by". Under that there is provision for the name of the person who posts the notice to be printed and then provision for a date. Thus, the document when completed purports to show who posted it and the date upon which it was posted. The date in this box is the only date which the documents bear. It seems that the only exception to that is the first of the directions which has a "date signed" under the signature on behalf of the respondent. In the case of that document, the date under the signature of the respondent and the date as to posting are the same.

[4] In each case the direction to rectify was posted by the respondent to the applicant by ordinary post. The documents were sent from the respondent in its Brisbane office to the applicant at a post office box in Toowoomba. It was conceded by the respondent that no notice to rectify could have been received by the applicant on the day it was posted but, at the very least, must have been received the day after it was posted. Affidavit material from the applicant showed (by reference to office practice and the affixing of a date received stamp) that some of the directions to rectify were in fact received the day after they are shown as being posted. Others were received two or three days later but some even later than this.

[5] In no case has the applicant performed the work the subject of the directions. In every case the applicant has filed proceedings for review of the directions to rectify in QCAT. The proceedings in QCAT have taken time and would appear to have been expensive. The applicant made an application in QCAT to have the first tranche of directions to rectify declared void on technical grounds (which did not include the ground raised in the proceeding before me) in March 2009. That application was unsuccessful. The member held that he had no jurisdiction to declare the notices to rectify void and decided to continue progressing the proceedings through QCAT notwithstanding the matters raised by the applicant. That decision was taken as far as a special leave application in the High Court (which was refused, 20 January 2011). The review hearings are due to be heard in QCAT on 15 March 2013.

[6] The language at s 72(3) is mandatory - "must be" - and when read with s 72(4) sets a minimum period for compliance with a direction to rectify except in the two circumstances at s 72(3)(a) and (b).

[7] Failure to comply with the direction to rectify is an offence and can have serious consequences in terms of a builder's licence - see ss 89 and 91 of the QBSA Act.

[8] There is no doubt that service of the directions to rectify by post was permissible on the part of the respondent - see s 109A(1) of the QBSA Act. Section 39A of the Acts Interpretation Act 1954 (Qld) provides that service by post is taken to have occurred when the document would have ordinarily been delivered in the course of post, unless the contrary is proved.

[9] The essence of the applicant's argument is that having regard to the purpose of s 72(3) - to give a minimum period of 28 days to a builder to rectify work - the subsection must be construed as meaning that the builder has 28 days from the time it receives the direction, not from the time the direction is posted. The applicant relies on the case of Claffey v Davy[1] and the older case cited therein, Associated Dominions Assurance Society Pty Ltd v Balmford.[2] The judgment of Fullagar J at p 184 of Balmford is particularly apposite here. Like the words in Balmford, the words of s 72(3) "the period stated in the direction" at first reading seemed to refer to the period stated in the written direction to rectify. However, like the words in Balmford, the words here are susceptible to a more sensible interpretation where the word "direction" means, not the piece of paper, but the act of directing - see s 72(1), "... the authority may direct the person ...". The reasons for adopting such an interpretation given by Fullagar J, at p 184 of Balmford, apply with equal force here. It would be unjust, and could in the extreme, be absurd, if s 72(3) were read as if "the direction" meant the written document sent to the builder.

[10] The consequence is in my view that none of the directions to rectify sent by the respondent to the applicant comply with s 72(3), in that none of them have given the respondent at least 28 days in which to perform the work called for. In Claffey v Davy, Spender J described such a non-compliance as meaning that the document sent in purported compliance with the legislation there was "not the notice for which s 125(7) calls". That was a criminal prosecution for non-compliance with a notice and Spender J regarded the defect as being fatal to the prosecution case. In matters concerning garnishee orders under the Taxations Acts there have been decisions declaring notices "invalid" for failure to comply with statutory requirements.[3] In Perpetual Trustee Co (Ltd) v Holdsworth,[4] a notice which did not comply with statutory requirements was found to be "not authorised by the statute and ... therefore ineffective" - p 758.

[11] In my view the requirement as to the recipient builder having at least 28 days to rectify in accordance with a direction issued pursuant to s 72 of the QBSA Act was essential to the validity of the notices issued by the respondent. The respondent did not have a power to issue a notice requiring rectification in a period shorter than 28 days except as was specified at s 72(3)(a) or (b). It follows that the directions to rectify issued by the respondent were invalid or void.

[12] It was argued by the respondent that even if I came to the above conclusion I should refuse to make a declaration for discretionary reasons because the hearing in QCAT was about to begin. On the other hand, the applicant urged upon me that I ought to make a decision prior to the hearing on the merits in QCAT.

[13] Section 9 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) provides:**

(1) The tribunal has jurisdiction to deal with matters it is empowered to deal with under this Act or an enabling Act.

(a) original jurisdiction; or

(b) review jurisdiction; or

(c) appeal jurisdiction."

(1) The tribunal's review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.

(2) For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision."

(1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision.

(2) The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits."

(1) In a proceeding for a review of a reviewable decision, the tribunal may -

(a) confirm or amend the decision; or

(b) set aside the decision and substitute its own decision; or

(c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate."

[17] Section 86 of the QBSA Act provides, referring to QCAT:

(1) The tribunal may review the following decisions of the authority -

(e) a decision to direct or not to direct rectification or completion of tribunal work;

**[18] From a review of the statutory provisions it should be plain that the question before me is not the same as the question before QCAT. QCAT has jurisdiction to review the decision of the respondent to direct rectification. The decision to direct rectification is necessarily anterior to the giving of a direction for rectification. My decision concerns only the directions to rectify actually given, it does not touch upon the validity of the decision of the respondent to direct rectification, or of course the merits of that decision. My decision is only concerned with the notice of that decision given to the applicant, by way of direction pursuant to s 72(1) of the QBSA Act.

[19] For these reasons it seems to me that the existence of the impending merits review in QCAT is no reason why I should not make the declaration sought. Further, having regard to the limited statutory powers of QCAT, I am of the view that QCAT does not have jurisdiction to entertain an application for a declaration. As I say, I cannot see that there is any overlap between the proceeding in this Court and the proceeding in QCAT.

[20] Accordingly I declare that Directions to Rectify, issued by the respondent to the applicant and numbered 30654, 30947, 30949, 31890, 31983, 31984, 32100, 32145, 32172, 32335, 32337, 32339, 32340, 32545, 32567, 38403, 38404, 38405, 38406, 38407, 38408, 38409, 38410, 38411, 38412, 38413, 38414, 38415, 38416, 38417, 38419, 38420, 38421, 38422, 38423, 38424 and 38425 are void.

[1] (1988) 28 IR 424.

[2] [1950] HCA 30; (1950) 81 CLR 161, 184.

[3] For example, Federal Commissioner of Taxation v De Martin and Gasparini Pty Ltd [2011] FCA 286, [31].

[4] [1966] 2 NSWR 755.