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

[2021] QCAT 181

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

1. 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.

2. 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.

3. 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.

4. 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].

5. 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.