Deleje Pty Ltd v Queensland Building and Construction Commission - [2023] QCAT 214

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Deleje Pty Ltd v Queensland Building and Construction Commission [2023] QCAT 214

PARTIES:

DELEJE PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

GAR076-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

30 May 2023

HEARING DATE:

25 May 2023

HEARD AT:

Brisbane

DECISION OF:

Member Olding

ORDERS:

1. The Tribunal determines that in accordance with s 70A(2) of the Queensland Building and Construction Commission Act 1991 (Qld), Deleje Pty Ltd is not entitled to indemnity under the statutory insurance scheme for work carried out at 42 Bernhard Street, Paddington.

2. Deleje Pty Ltd and the Queensland Building and Construction Commission must file in the Tribunal and give to the other party a copy of short written submissions regarding the orders they submit the Tribunal should make to give effect to these reasons, by: midday 5 June 2023.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – meaning of “person” in s 70A(2) of the Queensland Building and Construction Commission Act 1991 (Qld) – where company that is a commercial developer engaged builder to carry out works on property to be occupied as residence by the company’s director entitled to coverage under statutory insurance scheme

Queensland Building and Construction Commission Act 1991 (Qld), s 70A(2)

Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Lange v Queensland Building Services Authority [2011] QCA 58
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85

Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9

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)

Applicant:

S Seefeld instructed by Hearthstone Legal

Respondent:

S Moody instructed by Holding Redlich

REASONS FOR DECISION

What is this case about?

The Applicant, Deleje Pty Ltd, engaged a construction company to carry out renovation work on a house now occupied by its director, Mr Davin Johnson, as his principal place of residence (“the Property”).
Mr Johnson on behalf of the Applicant complained to the Queensland Building and Construction Commission that the work was incomplete and defective. There is a separate proceeding on foot in which Deleje Pty Ltd has applied for review of decisions by the Commission relating to whether notices to remedy defects should issue.
In the current proceeding, the Applicant seeks a review of a deemed decision of the Commission to disallow its claim in relation to the work under the statutory Queensland Home Warranty Scheme.
The dispute raises an issue concerning the proper construction of s 70A of the Queensland Building and Construction Commission Act 1991 (Qld). If that issue is resolved in the Applicant’s favour, a separate issue arises regarding whether the discretion to extend the time for claiming under the insurance scheme should be exercised.

Procedural history

On 15 August 2022, another member of the Tribunal made…

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

AGLC: Deleje Pty Ltd v Queensland Building and Construction Commission [2023] QCAT 214
Case: [2023] QCAT 214
Decision Date

CaseChat Overview and Summary

Deleje Pty Ltd, a commercial developer, engaged a construction company to carry out renovation work on a property occupied by the company’s director, Mr Davin Johnson. Mr Johnson complained to the Queensland Building and Construction Commission (the Commission) that the work was incomplete and defective. Deleje Pty Ltd sought a review of the Commission's decision to disallow its claim in relation to the work under the statutory Queensland Home Warranty Scheme. The dispute concerned the proper construction of s 70A of the Queensland Building and Construction Commission Act 1991 (Qld). If resolved in the Applicant's favour, the court would then consider whether the discretion to extend the time for claiming under the insurance scheme should be exercised.

The applicant argued that the term “person” in s 70A should not include a person contracting in their personal capacity as a consumer, and not in their capacity as a property developer. The applicant submitted that the purpose of the Act was to provide protection for home owners and that the scheme was not intended to cover business risks associated with commercial development projects. The applicant relied on the second reading speech by the Minister who introduced the amending bill that added s 70A and cited Lange v Queensland Building Services Authority in which the Court of Appeal identified the purpose of Part 5 of the Act as consumer protection. The court rejected the applicant's argument and found that the applicant was precluded by s 70A(2) from claiming under the insurance scheme. The court found that the applicant's construction was contrary to the plain meaning of s 70A and that it was not reasonably open on the text chosen by Parliament. The court also found that there was nothing in the text of s 70A(2) or its context within s 70A or the Act generally that was sufficient to support reading in an exclusion that is not found in the provision.

The Tribunal found that the applicant is not entitled to claim under the statutory insurance scheme. The timing issue does not arise if, as the Tribunal has concluded, the applicant is precluded by s 70A(2) from claiming under the insurance scheme. The Tribunal has concluded that it is preferable that it does not express a view regarding the exercise of the timing issue. The respondent submitted that, if the Tribunal decides the s 70A issue against the applicant, it should confirm the decision under review. The applicant's submissions state that if both of these issues are resolved in the applicant’s favour then the review application may proceed. Alternatively, if both these issues are not resolved in the applicant’s favour then this may affect the utility of the review application proceeding further. In the circumstances, the Tribunal will allow time for the parties to file short submissions regarding the orders the Tribunal should make to give effect to these reasons.

The Tribunal directs the parties to file short written submissions regarding the orders they submit the Tribunal should make to give effect to these reasons, by midday 5 June 2023. The outcome of this proceeding may affect the parties’ approach to the other proceeding concerning notices to remedy, which is currently listed for hearing on 6 June 2023. As it is desirable that the applicant clarify its approach before that hearing, the Tribunal will direct the parties to make their submissions on the orders to give effect to these reasons before that date.

Orders