Carter t/as Hulk Constructions v Queensland Building and Construction Commission

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Carter t/as Hulk Constructions v Queensland Building and Construction Commission [2021] QCAT 181

PARTIES:

JAMES NEIL CARTER T/AS HULK CONSTRUCTIONS
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR329-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

14 May 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

The Tribunal confirms the decision of the Queensland Building and Construction Commission dated 21 March 2019 that a domestic building contract has been validly terminated, having the consequence of allowing a claim for non-completion under the statutory insurance scheme.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where review of decision that domestic building contract validly terminated –- where applicant failed to adduce evidence – where Commission’s decision confirmed

Queensland Building and Construction Commission Act 1991 (Qld), s 68I
Queensland Building and Construction Commission Regulation 2018 (Qld), Schedule 6

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCAT 59
Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323
Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
Laidlaw v Queensland Building Services Authority [2010] QCAT 70
Walker v Queensland Building and Construction Commission [2014] QCAT 228

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

The Queensland Building and Construction Commission paid out a claim of $13,250.00 to a home owner due to James Neil Carter trading as Hulk Constructions not obtaining building approval.[1]
[1]Contract dated 13 March 2018, Item 13, Clause 10, Clause 30; Statement of Carey William Humble dated 27 August 2020, [4], [5], [8], [9], [11], [13]; Council Certificate dated 28 August 2020; Queensland Building and Construction Commission Act 1991 (Qld), s 68I; Queensland Building and Construction Regulation 2018 (Qld), Schedule 6.
Mr Carter applied to review the Commission’s decision that the home owner had validly terminated the contract. In a review application, the Tribunal’s purpose is to produce the ‘correct and preferable’ decision by way of a fresh hearing on the merits.[2] However, Mr Carter did not provide any evidence to assist the Tribunal to arrive at the correct and preferable decision.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
Mr Carter has an evidential onus to provide material to support the decision he seeks.[3] This has also been described as a ‘practical onus’.[4] The Tribunal cannot make findings where the evidence is insufficient – parties must be responsible for preparing their own case.[5]
[3]Walker v Queensland Building and Construction Commission [2014] QCAT 228, [23] citing with approval Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [23].
[4]Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115, [33].
[5]Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323, [3]; Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
Without evidence and submissions to support Mr Carter’s review application, the Tribunal is unable to make the orders he seeks.[6] It is not open to the Tribunal to make a finding that the home owner did not validly terminate the contract.
[6]Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [22] – [25]; Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCAT 59, [67].
The correct and preferable decision is to confirm the decision of the Commission dated 21 March 2019 that a domestic building contract has been validly terminated, having the consequence of allowing a claim for non-completion under the statutory insurance scheme.

CaseChat Overview and Summary

In this matter, James Neil Carter, trading as Hulk Constructions, applied to review a decision by the Queensland Building and Construction Commission (the Commission). The Commission had determined that a domestic building contract had been validly terminated, leading to a payout of $13,250 to a homeowner. The applicant sought to challenge the Commission's decision. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing the Commission's decision.

The primary issue before the Tribunal was whether the Commission's decision to confirm the valid termination of the domestic building contract was correct and preferable. The applicant, Mr Carter, needed to provide evidence and submissions to support his application for review. The onus was on Mr Carter to demonstrate that the Commission's decision was incorrect, particularly given the homeowner's valid termination of the contract due to the failure to obtain building approval. Mr Carter did not provide any evidence or submissions to assist the Tribunal in determining whether the Commission's decision was correct.

The Tribunal considered the applicable statutory provisions and relevant case law, emphasising the importance of the applicant providing sufficient evidence to support his claims. The Tribunal noted that it could not make findings where the evidence was insufficient. The Tribunal held that Mr Carter had an evidential onus to support his application and that the Tribunal could not make a finding that the homeowner did not validly terminate the contract in the absence of evidence. Therefore, the Tribunal concluded that the correct and preferable decision was to confirm the Commission's decision dated 21 March 2019.

The Tribunal confirmed the decision of the Commission that the domestic building contract had been validly terminated, allowing a claim for non-completion under the statutory insurance scheme. Consequently, the homeowner was entitled to the payout of $13,250. The Tribunal dismissed Mr Carter's application for review.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Carter t/as Hulk Constructions v Queensland Building and Construction Commission [2021] QCAT 181
PARTIES:	JAMES NEIL CARTER T/AS HULK CONSTRUCTIONS (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	GAR329-19
MATTER TYPE:	General administrative review matters
DELIVERED ON:	14 May 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	The Tribunal confirms the decision of the Queensland Building and Construction Commission dated 21 March 2019 that a domestic building contract has been validly terminated, having the consequence of allowing a claim for non-completion under the statutory insurance scheme.
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where review of decision that domestic building contract validly terminated –- where applicant failed to adduce evidence – where Commission’s decision confirmed Queensland Building and Construction Commission Act 1991 (Qld), s 68I Queensland Building and Construction Commission Regulation 2018 (Qld), Schedule 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCAT 59 Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323 Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 Walker v Queensland Building and Construction Commission [2014] QCAT 228
APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).