Cester v Queensland Building and Construction Commission - [2018] QCAT 87

CITATION:	Cester & Anor v Queensland Building and Construction Commission [2018] QCAT 87
PARTIES:	Claude Cester Patricia Puzzi (Applicants)
v
Queensland Building and Construction Commission (Respondent)
APPLICATION NUMBER:	GAR140-17
MATTER TYPE:	General administrative review matters
HEARING DATE:	2 February 2018
HEARD AT:	Brisbane
DECISION OF:	Member Deane
DELIVERED ON:	29 March 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The decision of the Queensland Building and Construction Commission dated 8 May 2017 to disallow a claim under the statutory home warranty scheme is confirmed.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – General Administrative Review – application to review a decision to disallow a claim – whether home owners should have the benefit of a legislative amendment PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – claim under statutory insurance scheme for residential construction work – where contractor not licensed – whether a contract of insurance came into existence – whether fraudulent claim made that a relevant licence was held Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 BM Farage Pty Ltd as trustee for Farage Discretionary Family Trust v Queensland Building Services Authority [2003] QCCTB 11 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Jensen v Queensland Building and Construction Commission [2017] QCAT 232 Jorg v Queensland Building and Construction Commission [2016] QCAT 364 Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 Shi v Migration Agents Registration Authority (2008) 235 CLR 286
APPEARANCES:
APPLICANTS:	Claude Cester Patricia Puzzi
RESPONDENT:	Queensland Building and Construction Commission
REPRESENTATIVES:
APPLICANTS:	represented by Ms Patricia Puzzi
RESPONDENT:	represented by Ms E Roberts of Robinson Locke Litigation Lawyers

REASONS FOR DECISION

Mr Cester and Ms Puzzi (the Home Owners) seek a review of a decision of the Queensland Building and Construction Commission (the QBCC) to disallow a claim under the statutory home warranty scheme (the Scheme). The decision is dated 8 May 2017.[1] This application was filed on 5 June 2017.
[1]Exhibit 3, pages 88 – 90.
The Tribunal has power to review a decision to disallow a claim against the Scheme.[2]
[2]Queensland Building and Construction Commission Act 1991(Qld) (QBCC Act),
s 86(1)(h), s 87.
On review, the Tribunal has power to confirm or amend the QBCC’s decision, set aside the decision and substitute its own or set aside the decision and return it to the QBCC for reconsideration.[3]
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 24.
The Tribunal’s function is to reach the correct and preferable decision.[4]
[4]Ibid, s 20.
During the hearing, the parties accepted that the only question I was required to determine was whether a contract of insurance came into existence. If I found a contract of insurance did not come into existence then I would confirm the QBCC’s decision. If I found that a contract of insurance did come into existence then it was submitted I…

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: [2018] QCAT 87
Decision Date: 29 March 2018

CaseChat Overview and Summary

The case of Cester v Queensland Building and Construction Commission involved a dispute between the appellant, Cester, and the respondent, the Queensland Building and Construction Commission. The dispute centred around a claim made by Cester under a statutory insurance scheme for residential construction work. Cester, as the homeowner, sought compensation for defects in construction work allegedly carried out by a contractor who was not licensed. The claim was disallowed by the Commission, leading Cester to seek a review of this decision in the Queensland Civil and Administrative Tribunal.

The primary legal issues the court needed to address were whether homeowners should benefit from legislative amendments that occurred after the work was performed and whether a contract of insurance came into existence despite the contractor's lack of a relevant licence. Additionally, the court examined whether Cester's claim constituted a fraudulent assertion that the contractor held the necessary licence.

The court determined that the legislative amendments did not apply retrospectively to benefit homeowners who had already entered into contracts for construction work. The court also found that a contract of insurance did not come into existence because the contractor was not licensed, thus invalidating the claim. Furthermore, the court held that Cester's claim was fraudulent, as it falsely represented that the contractor held a valid licence. Consequently, the decision of the Queensland Building and Construction Commission to disallow the claim was upheld.

In conclusion, the Tribunal confirmed the decision of the Commission, disallowing the claim made by Cester under the statutory home warranty scheme. The court's decision was based on the lack of retrospective application of legislative amendments, the absence of a valid insurance contract due to the contractor's unlicensed status, and the fraudulent nature of the claim. This ruling reinforces the importance of compliance with licensing requirements in the construction industry and the limitations on retrospective benefits under statutory schemes.

Orders

Orders of the court

1. The decision of the Queensland Building and Construction Commission dated 8 May 2017 to disallow a claim under the statutory home warranty scheme is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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