Doolan v Queensland Building and Construction Commission - [2017] QCAT 58

CITATION:

Doolan v Queensland Building and Construction Commission [2017] QCAT 58

PARTIES:	Sharon Maree Doolan (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR023-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

6 February 2017

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

28 February 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Decision of the Queensland Building and Construction Commission dated 16 December 2015 not to issue a Direction To Rectify is confirmed; and

2. The Decision of the Queensland Building and Construction Commission dated 15 July 2016 to decline the claim under the statutory insurance scheme is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – HOME WARRANTY INSURANCE

STATUTORY TIME LIMIT - where statutory time limit expired – whether Tribunal can extend time – where provision has mandatory precondition to exercise of discretion – where precondition not satisfied – where Tribunal cannot extend time and application must therefore be dismissed
FAIRNESS – whether fair to give ‘Direction To Rectify’ - where cause of defect and blameworthiness of homeowner relevant

CAUSE OF DEFECT - where homeowner did not provide independent expert evidence to support claims – where one Commission expert did not attend for cross-examination – where relying upon evidence of what a party claims an expert said would be contrary to procedural fairness – where weight of evidence did not suggest that builder caused problems

BLAMEWORTHINESS – where Commission cannot give ‘Direction To Rectify’ where homeowner has not obtained relevant permission to enable compliance - where not fair to give ‘Direction To Rectify’ where homeowner did not mitigate loss - where evidence suggested homeowner at least contributed to drainage issue by not obtaining neighbour’s permission and not maintaining rubble pit to prevent it being clogged –
where homeowner had duty to mitigate loss to ensure ‘Direction To Rectify’ is given in timely manner so builder can comply in timely manner – where negotiating with builder or lack of awareness of rights did not justify delay in complaint – where evidence suggested homeowner was aware or should reasonably have been aware of Commission’s existence and that it could take action – where homeowner had opportunity to obtain legal advice - where giving ‘Direction To Rectify’ after delay by homeowner who does not mitigate their loss is contrary to interests of building industry and consumers as a whole – where not fair to give ‘Direction To Rectify’ after delay – where builder cannot connect stormwater drainage without connection point – where ‘Direction To Rectify’ has no utility - where builder offered to connect stormwater drainage “free of charge” if connection point provided – where not fair to give ‘Direction To Rectify’ when no utility

HOME WARRANTY INSURANCE – where claim outside time limit – whether Tribunal should extend time – where no reasonable explanation for delay

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 72, s 72A
Queensland Civil and Administrative Tribunal…

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.

Keep reading for free

Create a free CaseChat account to read Doolan v Queensland Building and Construction Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] QCAT 58
Decision Date: 28 February 2017

CaseChat Overview and Summary

The case of Doolan v Queensland Building and Construction Commission involves a dispute between the homeowner, Mr. Doolan, and the Queensland Building and Construction Commission (QBCC). Mr. Doolan sought a 'Direction To Rectify' from the QBCC against his builder for alleged defective or incomplete building work. The QBCC declined to issue the direction, and Mr. Doolan appealed the decision to the Queensland Civil and Administrative Tribunal (QCAT). The appeal was further brought to the Queensland Court of Appeal.

The legal issues before the Court included whether the QBCC could extend the statutory time limit for issuing a 'Direction To Rectify', whether it was fair to issue the direction given the circumstances, and whether the QBCC should have accepted Mr. Doolan’s claim under the statutory insurance scheme. The Court had to consider the statutory preconditions, principles of fairness, and the evidence regarding the cause of the defect and the homeowner's blameworthiness.

The Court held that the QBCC could not extend the statutory time limit as there was a mandatory precondition that was not satisfied. Furthermore, the Court found that it was not fair to issue a 'Direction To Rectify' as Mr. Doolan did not provide independent expert evidence to support his claims, and the evidence did not suggest that the builder caused the problems. The Court also found that Mr. Doolan had not obtained the necessary permissions, had not mitigated his loss, and was aware or should have been aware of the QBCC and its powers. The Court concluded that issuing the direction after such delay would be contrary to the interests of the building industry and consumers. Finally, the Court upheld the QBCC’s decision to decline Mr. Doolan’s claim under the statutory insurance scheme due to the absence of a reasonable explanation for the delay.

The final orders of the Court were to confirm the QBCC's decision not to issue a 'Direction To Rectify' and to decline Mr. Doolan’s claim under the statutory insurance scheme.

Orders

Orders of the court

1. The Decision of the Queensland Building and Construction Commission dated 16 December 2015 not to issue a Direction To Rectify is confirmed; and

2. The Decision of the Queensland Building and Construction Commission dated 15 July 2016 to decline the claim under the statutory insurance 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.