Queensland Building Services Authority v Birrell

CITATION:

Queensland Building Services Authority v Birrell
[2013] QCAT 615

PARTIES:	Queensland Building Services Authority (Applicant)
v
Mr Alan Richard Birrell (Respondent)

APPLICATION NUMBER:

RWL002-13

MATTER TYPE:	General administrative review matters
HEARING DATE:	8 November 2013

HEARD AT:

Townsville

DECISION OF:

Member Roseby

DELIVERED ON:

8 November 2013

DELIVERED AT:

On the Papers

ORDERS MADE:

1. The Respondent home owner give all reasonable access to the Applicant Authority, on the provision of at least 7 days prior written notice, to allow the Authority to inspect the defective work for the purposes of issuing a direction to rectify to the builder.

2. Failing agreement, the parties have liberty to apply to the Tribunal within 28 days from the date of this decision.

CATCHWORDS:

RENEWAL - Application by Authority to renew final decision – where Tribunal ordered Authority to issue direction to rectify to builder – where initial building inspector left employ of Authority – where current building inspector has not viewed the defective work – where homeowner has not allowed access.

Queensland Civil and Administrative Tribunal Act 2009 s 133

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

The parties have previously been before the Tribunal[1] and Orders were made requiring the Authority to issue a direction to rectify to the relevant builder in respect of various Category 2 defects.
[1] Birrell v Queensland Building Services Authority [2013] QCAT 56.
The Authority now makes application to the Tribunal, pursuant to s 133 of the Queensland Civil and Administrative Tribunal Act 2009, for a renewal of that final decision.
The Authority says that the building inspector who initially inspected the work is no longer working for the Authority and that, therefore, the current building inspector will need to view the defective work in order to appropriately word and issue the direction to rectify. I agree with this.
The Authority has made an attempt to reach agreement with Mr Birrell in respect of gaining access to allow this occur though, to date, Mr Birrell has refused access. Whilst I appreciate that Mr Birrell takes issue with the way in which this matter has previously been handled by the Authority, I would have thought that there would be a level of co-operation, following Orders having been made in his favour, to allow the Authority to comply with those Orders and issue the direction to rectify.
Given the history of this matter and in order for the Tribunal’s final decision to be complied with, I make the following Orders:
a) Mr Birrell give all reasonable access to the Authority, on the provision of at least 7 days prior written notice, to allow the Authority to inspect the defective work for the purposes of issuing a direction to rectify to the builder.
b) Failing agreement, the parties have liberty to apply to the Tribunal within 28 days from the date of this decision.

CaseChat Overview and Summary

In the matter of Queensland Building Services Authority v Birrell, the Queensland Civil and Administrative Tribunal was asked to consider an application by the Authority to renew a previous decision. The Authority sought to inspect defective work to issue a direction to rectify to the builder, but the homeowner, Mr Birrell, had refused access. The matter was heard on the papers, with both parties submitting written arguments without appearing in person.

The primary legal issue before the Tribunal was whether the Authority should be granted access to the property to inspect the defective work, given that the original building inspector was no longer employed by the Authority and the current inspector had not viewed the work. The Tribunal had to balance the Authority's need to comply with its previous decision against Mr Birrell's concerns about the handling of the matter by the Authority in the past.

The Tribunal agreed that the Authority needed access to inspect the defective work to appropriately word and issue the direction to rectify. The Tribunal emphasised the importance of cooperation from Mr Birrell to allow the Authority to comply with the Tribunal's previous decision. Given the history of the matter and the need for compliance with the final decision, the Tribunal ordered that Mr Birrell provide all reasonable access to the Authority upon at least seven days' prior written notice. If the parties could not agree, they had the liberty to apply to the Tribunal within 28 days of the decision.

The Tribunal's orders were that Mr Birrell must give the Authority all reasonable access to inspect the defective work, and if the parties could not agree, they could apply to the Tribunal within 28 days of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established