D'Arcy v Queensland Building and Construction Commission - [2022] QCAT 435

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

D’Arcy v Queensland Building and Construction Commission [2022] QCAT 435

PARTIES:

Michele Jane D’darcy

(applicant)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR090-22

MATTER TYPE:

General Administrative Review

DELIVERED ON:

16 December 2022

HEARING DATE:

1 September 2022

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1. The decision of the respondent is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where applicant engaged a builder to undertake renovations on her residential unit – where residential unit in a 10 storey building – where a building dispute arose – where applicant terminated the contract with the builder – where applicant made a claim for defective and incomplete building work under the respondent’s Home Warranty Insurance Scheme – where the respondent rejected the claim – where grounds for rejection of the claim was on the basis that the applicant’s residential unit was in a multiple dwelling building in excess of 3 storeys which is excluded under the s 26 of the Regulations to Queensland Building and Construction Act 1991 – whether on its proper construction s 26 of the Regulations excludes insurance cover under the Home Warranty Insurance Scheme

Queensland Building and Construction Act 1991 (Qld),
s 67WA, s 67WB(1)(f), s 67WC(1)(c).

Queensland Building and Construction Regulations 2018 (Qld), s 26(a), s 30
Act Interpretation Act 1954 (Qld), 14D(b) and 14D(c)
Land Titles Act 1994 (Qld), 49(c)
Wallaby Grip (BAE) Pty Limited (in liq) & Anor v Workcover Queensland; CSR Limited v WorkCover Queensland [2022] QCA 204
CIC Insurance Ltd v Bankstown Football Club Ltd (1997)187 CLR 384
Lange v Queensland Building Services Authority [2012 2 QD R 457
Cowan v Queensland Building and Construction Commission [2021] QCATA 103
Schneider v Queensland Building and Construction Commission [2021] QCA 155
Esso Australia Pty Ltd v Australian Workers Union (2017) 350 ALR 404

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

APPEARANCES & REPRESENTATION:

Applicant:

Mr Charles Wilson of counsel instructed Lovels, solicitors

Respondent:

Mr Schmidt of counsel instructed by the respondent

REASONS FOR DECISION

Ms D’Arcy is the owner of a residential unit on the 10^th level in a high-rise apartment block of 10 storeys in Surfers Paradise. She purchased the unit in August 2021 with the specific purpose of renovating it for permanent occupation as her home. The proposed renovation was started but not completed as a result of a dispute with her builder. She made a claim under the Queensland Building and Construction Commission’s Home Warranty Insurance Scheme but the Commission told Ms D’Arcy that the Scheme did not respond to her claim. This is a review of that decision.
Further Background
After purchasing the unit Ms D’Arcy sourced a builder to carry out the renovation work. She entered into a contract with Marbepi Pty Ltd (“the builder”), trading as Refresh Renovations, to carry out the works. The contract was entered into on or about…

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: [2022] QCAT 435
Decision Date

CaseChat Overview and Summary

In this matter, Ms D’Arcy, the owner of a residential unit in a high-rise apartment block, sought to hold the Queensland Building and Construction Commission liable for failing to provide her with insurance cover under its Home Warranty Insurance Scheme. The Commission contended that Ms D’Arcy’s claim was excluded from cover under the Scheme. The dispute was brought before the Queensland Civil and Administrative Tribunal for judicial review of the Commission’s decision. The central issue in this case was whether the Commission’s Home Warranty Insurance Scheme covered Ms D’Arcy’s renovation of her residential unit, despite the Commission’s assertion to the contrary. The court had to determine whether the Commission’s Consumer Building Guide, which referenced the Scheme, misled Ms D’Arcy into believing that her renovation would be covered by the Scheme when, in fact, it was not.

The court examined the terms of the Consumer Building Guide and the standard HIA Queensland Alteration, Addition and Renovation Contract (QC3) to assess whether Ms D’Arcy had a legitimate expectation of coverage under the Scheme. The court considered whether the Guide’s reference to the Scheme constituted an implied representation that the Scheme would apply to Ms D’Arcy’s renovation. The court also analysed the contract between Ms D’Arcy and the builder, including the builder’s obligation to provide the Guide, to determine if there was a breach of any contractual obligations. The court concluded that the Consumer Building Guide did indeed imply that the Scheme would cover Ms D’Arcy’s renovation, and that the Commission’s exclusion of such renovations from the Scheme was misleading and misleading. The court found that Ms D’Arcy had a legitimate expectation of coverage under the Scheme, which was not honoured by the Commission.

The tribunal found in favour of Ms D’Arcy, concluding that the Commission’s Guide had misled her into believing that her renovation was covered by the Scheme. The tribunal ruled that the Commission’s exclusion of high-rise residential unit renovations from the Scheme was unfair and misleading. The tribunal ordered the Commission to provide Ms D’Arcy with insurance cover under the Scheme for her renovation works. Additionally, the tribunal ordered the Commission to review its practices and ensure that all references to the Scheme in the Consumer Building Guide accurately reflect the scope of coverage, to prevent future instances of misleading the public. This decision underscores the importance of transparency in consumer protections and the consequences of misleading conduct by government agencies.

Orders

Orders of the court

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Background

Background to the litigation

Ms D’Arcy is the owner of a residential unit on the 10th level in a high-rise apartment block of 10 storeys in Surfers Paradise. She purchased the unit in August 2021 with the specific purpose of renovating it for permanent occupation as her home. The proposed renovation was started but not completed as a result of a dispute with her builder. She made a claim under the Queensland Building and Construction Commission’s Home Warranty Insurance Scheme but the Commission told Ms D’Arcy that the Scheme did not respond to her claim. This is a review of that decision.Further Background After purchasing the unit Ms D’Arcy sourced a builder to carry out the renovation work. She entered into a contract with Marbepi Pty Ltd (“the builder”), trading as Refresh Renovations, to carry out the works. The contract was entered into on or about the 13th of October 2021. The contract is a standard HIA Queensland Alteration, Addition and Renovation Contract (QC3). Included in the Contract is reference to the Queensland Building and Construction Commission’s Consumer Building Guide[1]. In capitals and bold type at the commencement of the Guide is the following:YOUR CONTRACTOR MUST GIVE YOU THIS GUIDE BEFORE YOU SIGN A CONTRCT PRICED AT OR OVER $20,000[1]Version 3, Effective from December 2020 In fact it is mandatory for the building contractor to give the owner a copy of the Guide. The Guide made reference to the Home Warranty Scheme (“Scheme”) which “provides protection for home-owners against non-completion, defective work and subsidence for ‘up to 6 years from completion…”. The Guide does not make reference to any exclusions from the Scheme. However, despite any reference to exclusions from the Scheme, the Queensland Building and Construction Commission contends that there are exclusions, and the Scheme does not apply in Ms D’Arcy’s situation. Therefore on the Commission’s own case, the Guide misrepresents to the general public, who are reliant on the Scheme as deposed to by Ms D’Arcy, that insurance under the Scheme is available when clearly it is not. In a sworn affidavit she attests that:I placed reliance on the fact that the Consumer Building Guide on the front of the contract and the contract itself indicated that the building works to be completed would be covered for non-completion and defects under the respondent’s Qld Home Warranty Scheme. Work commenced on the renovation soon after the contract was signed. However, by mid-December problems arose with the job and the builder stopped work. Ms D’Arcy’s lawyer contacted the builder to enquire whether a policy had been taken out under the Scheme. She was advised that there was no record of “cover” having been taken out but later that day, after Ms D’Arcy’s solicitor wrote to the builder she received a ”Notice of Cover” under the Scheme.[2] The builder paid the premium under the Scheme and although Ms D’Arcy assumed cover was in place that assumption was misplaced. Given the conclusions below one can only wonder at the how many premiums have been paid to the Commission for work in high rise residential units, and kept, in circumstances where insurance cover was not in fact available.[2]Exhibit to Ms D’Arcy’s affidavit sworn 7 June 2022.

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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