Body Corporate for Rosegum Villas v Queensland Building and Construction Commission

[2015] QCATA 125

CITATION:	Body Corporate for Rosegum Villas v Queensland Building and Construction Commission [2015] QCATA 125
PARTIES:	Body Corporate for Rosegum Villas CTS 37755 (Applicant/Appellant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER: APL544 -14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM
Member Browne

DELIVERED ON: 25 August 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Appeal allowed.

2.    The decision of 18 November 2014 is set aside.

3.    The proceeding is returned to the tribunal for hearing.

4.    The proceeding is listed for a directions hearing on a date to be advised.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL –GENERAL ADMINISTRATIVE REVIEW – where cracks in walls occurred in 16 unit blocks in complex – where claim on statutory insurance – where claims paid on 11 of 16 blocks – where tribunal confirmed decision not to pay claims – whether tribunal gave adequate reasons – whether tribunal construed terms of policy – whether tribunal misdirected itself on the evidence – whether grounds for leave to appeal

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Franklin & Ors v Burleigh Town Village Pty Ltd [2014] QCATA 183

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Rosegum Villas is a complex of sixteen single storey residential buildings, with each building containing three or four units. Construction of the complex was completed in November 2007.

2. In August 2009, the body corporate noticed cracking in both internal and external walls. Some owners filed complaints with the Queensland Building and Construction Commission in August 2009. The Body Corporate filed a complaint in October 2009. All complaints claimed payment for the cost of rectifying subsidence under clause 3.1 of the QBCC’s insurance policy.

3. After a lengthy period of review, refusal and further review, the QBCC accepted liability for eleven of the sixteen blocks. The body corporate filed an application for a review of the QBCC’s decision about the five claims rejected. The tribunal agreed with the QBCC.

4. The body corporate wants to appeal that decision. It says the tribunal failed to give adequate reasons for its decision. It says the tribunal failed to construe clause 3.1 of the policy. It says that the tribunal misdirected itself about the evidence or the weight of the evidence. All grounds of appeal are question of law for which leave is not required.

Did the tribunal give adequate reasons for its decision?

1. The parties agree that the tribunal must give adequate reasons for its decision. What is “adequate” for a tribunal is informed by the nature of the dispute. A tribunal is not required to mimic the way a court gives its reasons[1], but it must set out the material findings of fact, the applicable law and the reasons for applying the law in the way expressed in the decision[2].

   [1]Franklin & Ors v Burleigh Town Village Pty Ltd [2014] QCATA 183 at [61], [62].

   [2]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [47].

1. QBCC submits that the tribunal did set out the fundamental reasons for its conclusions. It points out the tribunal set out the background[3] and the key components of the policy and the relevant Australian Standard[4]. The tribunal set out the evidence[5] and the parties’ submissions[6]. The tribunal discusses the evidence and makes findings of fact[7]. We agree that, so far, the tribunal’s reasons set out the material findings of fact, why those findings were made and the applicable law.

   [3]Body Corporate for Rosegum Villas v Queensland Building and Construction Commission

   [4]At [9] to [14].

   [5]At [15] to [22].

   [6]At [23] to [32].

   [7]At [34] to [55].

1. The tribunal’s discussion of interpretation and applicability of clause 3.1 appears in these paragraphs:

[67]The actual liability issues fall within a fairly narrow compass and flow on from the engineering views that are accepted.

[68]I have preferred the evidence of Mr Wright in this matter. The consequence of that is that I am satisfied that the five subject buildings are presently all performing satisfactorily within the Australian Standard.

[69]The result of that evidence and finding is that no entitlement arises under the Policy, as there is no present adverse effect on the structural adequacy or serviceability, performance or functional use of the building work.

1. The tribunal’s reasons do not address the six arguments posited by the body corporate and acknowledged by the tribunal[8]. Whatever the tribunal’s findings of fact, these were important questions which required an answer. The tribunal’s reasons do not address these questions. The reasons are inadequate and the appeal should be allowed.

Did the tribunal fail to construe clause 3.1 of the policy?

[8]At [23].

1. Given that we have found the tribunal did not address the issues raised by the body corporate in its submissions, it follows that the tribunal did not address the construction of clause 3.1.

Did the tribunal misdirect itself about the evidence or the weight of the evidence?

1. The body corporate submits that, if its submissions about the construction of the policy is accepted, the finding at [52] of the tribunal’s decision should be set aside.

1. We are not persuaded that the tribunal misdirected itself about the weight of the evidence. We are, however, persuaded that the tribunal should revaluate the evidence in light of its findings about the policy.

Conclusion

1. The appeal is allowed. The proceeding is returned to the tribunal for rehearing. It should be listed for a directions hearing at the earliest opportunity to determine whether the parties want the opportunity to submit further material or whether the tribunal can reconsider its decision on the papers.