Cronin v Queensland Building and Construction Commission - [2019] QCAT 14

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION: Cronin v Queensland Building and Construction Commission [2019] QCAT 14

PARTIES:
MATTHEW CRONIN

and

KATE CRONIN

(applicants)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S: GAR080-18

MATTER TYPE: General administrative review matters

DELIVERED ON: 29 January 2019

HEARING DATE: 21 November 2018

HEARD AT: Brisbane

DECISION OF: Member Gordon

ORDERS: The decision made by Queensland Building and Construction Commission on 5 February 2018 to disallow a claim under the Queensland Home Warranty Scheme is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS –

STATUTORY INSURANCE SCHEME – where builder failed to complete the construction of a house – where the owners engaged new contractors to do emergency work and complete the house – where the Queensland Building and Construction Commission refused the owners’ insurance claim because work was done without prior written approval – whether there is any discretion to allow such a claim after legislative amendments taking effect on 28 October 2016 – whether the tribunal’s discretion on review is any wider than that of the Commission

Queensland Building and Construction Commission Act

1991 (Qld), s 3, s 19, s 67Y, s 68H, s 69

Queensland Building and Construction Commission Regulation 2003 (Qld), s 26B, s 58, s 64 of Schedule 2C Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20

Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531

WorkPac Pty Ltd v Skene [2018] FCAFC 131

APPEARANCES AND REPRESENTATION:

Applicants: Derek Cronin, solicitor of Cronin Miller Litigation

Respondent:

Suliana Tabaiwalu, Senior Principal Lawyer

REASONS FOR DECISION

This is a review of a decision made by the Queensland Building and Construction Commission in which they disallowed an insurance claim. In a nutshell, the licence of contractors engaged to construct a new house for Matthew and Kate Cronin (the Applicants) was suspended and then cancelled before the house was completed. The Applicants made an insurance claim under the Queensland Home Warranty Scheme but also engaged new contractors to make the house safe and compliant and then to complete it. The insurance claim was rejected by the QBCC because the new contractors had been engaged to work on the house without their prior approval.
The law which applies to the Queensland Home Warranty Scheme is in the Queensland Building and Construction Regulation 2003 (Qld) (‘the QBCC Regulation’). In that regulation the scheme is called ‘the statutory insurance scheme’.1 Changes were made to the statutory insurance scheme on 28 October 2016 and this decision concerns the law as it applies after those changes.
The issues to be decided in this review were identified at the commencement of the hearing as:-
Issue 1 - Were the works at the property which were undertaken by the new contractors demolition works, rectification works or reinstatement works within the meaning of section 64 of Schedule 2C of the QBCC Regulation?

Issue 2 - If the answer to issue 1 is ‘no’, then is the Applicants’ insurance claim to be allowed under the…

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: [2019] QCAT 14
Decision Date: 29 January 2019

CaseChat Overview and Summary

The Cronin v Queensland Building and Construction Commission case involved the owners of a residential property who had engaged a builder to complete the construction of their house. When the builder failed to finish the work, the owners hired new contractors to address emergency issues and complete the house. Upon submitting an insurance claim under the Queensland Home Warranty Scheme, the Queensland Building and Construction Commission denied the claim because the new work was carried out without prior written approval. The owners appealed this decision to the tribunal, seeking review on the basis of the Commission's refusal to exercise any discretion to allow the claim, despite legislative amendments that took effect on 28 October 2016.

The central legal issues in the case were whether the Commission had the discretion to allow the insurance claim after the legislative changes and whether the tribunal's discretion to review the Commission's decision was broader than that of the Commission itself. The court had to interpret the statutory provisions, particularly those that were amended, and determine if the new legislation expanded the Commission's powers to allow such claims under the Scheme.

In examining the statutory framework, the court found that the legislative amendments did not expand the Commission's discretion to allow insurance claims where work was completed without prior written approval. The tribunal's review powers were not found to be any broader than those of the Commission. The court held that the Commission's decision to disallow the claim was correct, and the tribunal's confirmation of this decision was also upheld. The statutory scheme required strict compliance, and the failure to obtain prior written approval was a decisive factor.

The court confirmed the decision made by the Queensland Building and Construction Commission on 5 February 2018, disallowing the claim under the Queensland Home Warranty Scheme. The tribunal's decision to uphold the Commission's disallowance of the claim was affirmed, reflecting the statutory requirements and the lack of discretion in such matters post-legislative amendments.

Orders

Orders of the court

The decision made by Queensland Building and Construction Commission on 5 February 2018 to disallow a claim under the Queensland Home Warranty Scheme is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cronin v Queensland Building and Construction Commission [2019] QCAT 14
PARTIES:	MATTHEW CRONIN and KATE CRONIN (applicants)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	GAR080-18
MATTER TYPE:	General administrative review matters
DELIVERED ON:	29 January 2019
HEARING DATE:	21 November 2018
HEARD AT:	Brisbane
DECISION OF:	Member Gordon
ORDERS:	The decision made by Queensland Building and Construction Commission on 5 February 2018 to disallow a claim under the Queensland Home Warranty Scheme is confirmed.
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where builder failed to complete the construction of a house – where the owners engaged new contractors to do emergency work and complete the house – where the Queensland Building and Construction Commission refused the owners’ insurance claim because work was done without prior written approval – whether there is any discretion to allow such a claim after legislative amendments taking effect on 28 October 2016 – whether the tribunal’s discretion on review is any wider than that of the Commission Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 19, s 67Y, s 68H, s 69 Queensland Building and Construction Commission Regulation 2003 (Qld), s 26B, s 58, s 64 of Schedule 2C Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531

APPEARANCES AND REPRESENTATION:
Applicants:	Derek Cronin, solicitor of Cronin Miller Litigation
Respondent:	Suliana Tabaiwalu, Senior Principal Lawyer