Canchester Pty Ltd v Queensland Building Services Authority - [2013] QCAT 601

CITATION:

Canchester Pty Ltd v Queensland Building Services Authority [2013] QCAT 601

PARTIES:	Canchester Pty Ltd (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR235 -13

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

6 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application to strike out the application for review is refused.

2. The Queensland Building Services Authority must file two (2) copies and give to Canchester Pty Ltd one copy of its statement of reasons, by: 4:00pm on 29 November 2013.

3. Canchester Pty Ltd must file two (2) copies and give to the Queensland Building Services Authority one (1) copy of any statements of evidence, by: 4:00pm on 6 January 2014.

4. The Queensland Building Services Authority must file two (2) copies and give to Canchester Pty Ltd one (1) copy of any statements of evidence in reply, by: 4:00pm on 31 January 2014.

5. The application is listed for a Compulsory Conference in Brisbane at 9:30am on 3 March 2014.

CATCHWORDS:

QUEENSLAND BUILDING SERVICES AUTHORITY – STATUTORY INSURANCE – where defect came to insured’s attention during the policy period – where insured notified the Authority after the policy expired – whether the insured notified the Authority within time – whether the insured can claim under the policy -

Orlanski v Queensland Building Services Authority [2011] QCAT 35

APPEARANCES and REPRESENTATION (if any):

The tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

In 2004, Canchester Pty Ltd engaged Noosabuild Pty Ltd to build a home at Noosa Springs. Practical completion occurred on 29 May 2007. On 6 June 2013, the Queensland Building Services Authority received notice of a complaint that the building work was defective. By that time, Noosabuild had been deregistered. Canchester would have to rely on the statutory insurance policy if the defect was to be rectified.
On 20 June 2013, the Authority wrote to Canchester, advising that the statutory insurance period had expired, the Authority received the complaint after the time limits in the policy and, therefore, it was unable to assist with either the complaint or a claim under the policy.
Canchester has applied to the tribunal for a review of that decision. The Authority has applied to strike out Canchester’s claim.
Clause 2.5 of the policy states that a person is not entitled to payment for loss unless the claim is made within specific time frames. For a Category 1 defect, a person must make a claim within three months of the defect first becoming evident. For Category 2 defects, a person must make a claim within seven months of the date of practical completion.
Canchester became aware of some defects in February 2011. The defects related to cracking tiles, poor alignment of tiles, excessive gaps in the tiles, poor flashing and inadequate drainage and guttering. These appear…

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: [2013] QCAT 601
Decision Date

CaseChat Overview and Summary

Canchester Pty Ltd has applied to the Queensland Civil and Administrative Tribunal for a review of a decision by the Queensland Building Services Authority (QBSA) to refuse to assist Canchester in making a claim under a statutory insurance policy. The statutory insurance policy was taken out by Noosabuild Pty Ltd, the builder of a home at Noosa Springs. The home was completed in May 2007, and the policy expired on 29 May 2013. In June 2013, Canchester notified QBSA of defects in the home. QBSA refused to assist Canchester in making a claim under the policy, on the basis that Canchester did not notify it of the defects within the time limits specified in the policy. The central issue in this case was whether the QBSA is precluded from extending the time for notification of defects once the policy period has expired. The tribunal considered that the policy does not preclude the QBSA from extending the time for notification of defects, and that the QBSA’s power to extend the time for notification of defects is not limited to instances where the defect first becomes evident during the policy period. The tribunal also considered that the QBSA had not turned its mind to whether the defects identified in the Galbraith & Scott report were Category 1 defects, or whether they were the same defects as those identified in 2011. The tribunal refused QBSA’s application to strike out Canchester’s application for review. The tribunal directed the parties to file statements of reasons and evidence, and listed the matter for a compulsory conference.

Orders