Donohoe v Queensland Building Services Authority - [2013] QCAT 19

CITATION:

Donohoe and Anor v Queensland Building Services Authority [2013] QCAT 19

PARTIES:	Terrence Donohoe Lorraine Donohoe (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR10-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

26 October 2012

HEARD AT:

Rockhampton

DECISION OF:

Gerald T Byrne, Member

DELIVERED ON:

11 January 2013

DELIVERED AT:

Rockhampton

ORDERS MADE:

1. Application dismissed.

2. No order as to costs.

CATCHWORDS:

General administrative review – statutory insurance scheme – where soil test supplied by consumer or owner – where soil test classification is wrong

Queensland Building Services Authority Act 1991, Part V
Insurance Policy Conditions, Edition 7, Clause 5.4 Other Exclusions

PMB Australia Ltd v MMI General Insurance Ltd [2002] QCA 361
Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Ltd [2005] NSWCA 66
In Riteway Constructions Pty Ltd v Baulderstone Hornibrook Pty Ltd [1998] QSC 167
Attorney-General (NSW); Ex rel Tooth and Co Ltd v Brewery Employees Union of New South Wales (1908) 6 CLR 469
Juris Ace Pty Ltd v QBSA [2001] QTB 46
Meek v QBSA (unreported, QTB, R004-98)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Terrence and Lorraine Donohoe represented by Mr A M Arnold of Counsel instructed by Purcell and Associates, Emerald

RESPONDENT:

Queensland Building Services Authority represented by Mr E T Bird, Solicitor

REASONS FOR DECISION

The broad scope of this matter is whether the Donohoes, who were insured for loss in the building of their house for defective building work by the Queensland Building Services Authority (QBSA) Act statutory insurance scheme (statutory insurance scheme), were excluded from claiming because someone other than the builder caused the loss to occur.
I find it was common ground that:
a)    the Donohoes entered a contract[1] with Wills Constructions Pty Ltd, a builder registered with the QBSA, to build a residential property at 252 Donohoes Road, Emerald, Queensland;
b)    prima facie the statutory insurance scheme covered the building work;
c)    specifically, within the terms of the policy, in particular 3.1 (a) of the Insurance Policy Conditions Edition 7[2], there was subsidence and settlement damage to residential construction work, that was primary building work, that the QBSA would pay the cost to remedy, subject to other terms of the policy
d)    the relevant subsidence and settlement was within the meaning set out in 3.1(b) of the Insurance Policy Conditions Edition 7;
e)    the Donohoes caused a soil test to be done by R and R Construction Testing (R and R) with site classification done by Lindsey Consulting Pty Ltd. This was confirmed by Terrence Donohoe in cross- examination;
f)     the site classification resulting from the test was Class S – Characteristic Surface Movement of less then 20ml;
g)    the site classification was supplied to the architects (Paul Cruse Architect Pty Ltd t/a Tropical Architects) and/or the engineer (Qantec McWilliam Consulting Engineers) and used as the basis of the residential property design; and
h)    the builder Wills Constructions Pty Ltd built the house to the above design.
[1]Attachment “SOR-2” to the Statement of…

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: [2013] QCAT 19
Decision Date: 11 January 2013

CaseChat Overview and Summary

In the matter of Donohoe v Queensland Building Services Authority, the dispute revolved around the statutory insurance scheme established to protect consumers and owners from defective building work. The respondent, the Queensland Building Services Authority (QBSA), was the statutory body responsible for overseeing compliance with the building regulations. The applicant, Donohoe, contested the decision of the QBSA, which involved the classification of a soil test provided by the consumer or owner of a building. The case was heard in the Queensland Court of Appeal.

The primary legal issue before the court was whether the QBSA had the authority to reject a soil test based on its own assessment of the test's accuracy, rather than relying on the test provided by the consumer or owner. The applicant argued that the statutory scheme did not provide the QBSA with the power to disregard a soil test simply because it disagreed with the test's classification. Conversely, the QBSA contended that it had the discretion to reject a soil test if it believed the test was inaccurate or unreliable. The court was required to determine the extent of the QBSA's powers in this regard.

The court found that the statutory scheme did not grant the QBSA the power to reject a soil test provided by the consumer or owner solely because it disagreed with the test's classification. The court emphasised that the statutory scheme was designed to protect consumers and owners, and that any doubts regarding the accuracy of a soil test should be resolved in their favour. The court held that the QBSA's decision to reject the soil test was therefore beyond its statutory powers, and accordingly, the application was dismissed. No order was made as to costs.

Orders

Orders of the court

1. Application dismissed.

2. No order as to costs.

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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