Campbell v Queensland Building and Construction Commission - [2022] QCAT 403

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Campbell v Queensland Building and Construction Commission [2022] QCAT 403

PARTIES:

CATHLEEN MARY CAMPBELL

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR273-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 December 2022

HEARING DATE:

21 September 2022

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

1.   The decision of the Respondent of 1 July 2020 to disallow the Applicant’s claim under the statutory insurance scheme lodged on 19 March 2020 is set aside and, in substitution, it is decided that the Applicant’s claim under the statutory insurance scheme lodged on 19 March 2020 is allowed.

2.   Within 14 days of the date of these orders, the parties shall file with the Tribunal, and serve on the other party, written submissions, no longer than 5 pages, on the question of costs of the Application to review a decision filed on 27 July 2020.

3.   Each party shall, within 14 days of the date of receipt of the other party’s submissions, file with the Tribunal, and serve on the other party, any written submissions in reply, no longer than 5 pages.

4.   Unless otherwise ordered by the Tribunal, the question of costs will be heard and determined on the papers, without an oral hearing.

5.   The Applicant’s application for a non-publication order is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – applicant made claim under statutory insurance scheme in respect of incomplete work – Queensland Building and Construction Commission disallowed the claim – applicant applies to review decision – whether building contract ended within 2 years after the day the work started – when work physically started at site – whether applicant validly terminated contract – whether contractual right to terminate for delay in recommencing construction works – whether builder renounced contract by reason of defective work

Acts Interpretation Act 1954 (Qld), s 38
Queensland Building and Construction Commission Act1991 (Qld), s 67WA, s 67WB, s 67X, s 67Y, s 71F, s 75, s 86, s 87, Part 5, Schedule 1B, s 4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 17, s 20, s 23, s 24, s 66

Queensland Building and Construction Commission Regulation 2003 (Qld), s 26B, s 26L, Schedule 2C, s 2, s 3, s 4, s 6, s 7

Australian Dream Homes Pty Ltd vStojanovski [2016] VSCA 133
Campbell v Queensland Building and Construction Commission [2021] QCATA 34
Cherry v Steele-Park (2017) 96 NSWLR 548
Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303
Koompahtoo Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
Stojanovski v Australian Dream Homes [2015] VSC 404

Watego v State of Queensland and ors [2022] QCAT 341

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms Coonan, Solicitor, of HWL Ebsworth Lawyers

REASONS FOR DECISION

Introduction

By an Application to review a decision filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCAT 403
Decision Date

CaseChat Overview and Summary

In the present case, the Applicant, Ms Campbell, applied for review of a decision by the Respondent, the Queensland Building and Construction Commission (QBCC), to disallow her claim under the statutory insurance scheme. The Applicant sought to have the decision reviewed and her claim allowed. The key issues for determination were whether the contract between Ms Campbell and the Builder ended within two years after the work started under the contract and, if so, whether Ms Campbell validly terminated the contract. The Tribunal found that the contract ended within the requisite two-year period and that Ms Campbell validly terminated the contract on the default of the Builder. The Tribunal set aside the decision of the QBCC to disallow Ms Campbell’s claim and, in substitution, decided that Ms Campbell’s claim under the statutory insurance scheme lodged on 19 March 2020 should be allowed. The parties were directed to file written submissions on the question of costs, with the issue to be heard and determined on the papers, without an oral hearing. Ms Campbell’s application for a non-publication order was refused.

Orders