Ellis v Queensland Building Services Authority - [2012] QCAT 641

CITATION:

Ellis and Anor v Queensland Building Services Authority [2012] QCAT 641

PARTIES:	Shane Ellis Vicki Ellis (Applicants)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR082-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

J Jerrard QC, Member

DELIVERED ON:

24 December 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

Set aside the decision of 2 February 2012;1.

Return the matter for reconsideration to the QBSA, with the following direction:2.

The QBSA is to request the applicants to provide a statutory declaration signed by one of them, describing therein with particularity the building work performed at 40 Handel Avenue, Worongary by Michael Eston Homes Pty Ltd, the dates between which that work was performed, and the total cost of it; and of the position of the tiles about which complaint was made to QBSA Inspector Campbell on 19 November 2011, specifying whether or what portions of those are in a covered area;a.

Upon receipt of that statutory declaration, the QBSA is to determine the applicants’ claim for indemnity under the Statutory Insurance Scheme, and advise the applicants of the result, specifying therein whether the QBSA is following and applying the reasons and decision of this Tribunal in Jones v QBSA [2010] QCAT 563.3.

CATCHWORDS:

Meaning of “Primary Building Work” – What constitutes a “Path” – Need for agreement on the facts

Queensland Civil and Administrative Tribunal Act2009

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

This is a proceeding for the review, under s 86(1)(h) of the Queensland Building Services Authority Act 1991 (“the QBSA Act”), of a decision by the Queensland Building Services Authority (“the QBSA”) (communicated by letter dated 2 February 2012), to disallow a claim by the applicants Mr Shane Ellis and Mrs Vicki Ellis, made under the Queensland Home Warranty Scheme (“the Statutory Insurance Scheme”). The applicants lodged a claim received on 6 October 2011, in respect of building work performed in June 2006 at the applicants’ residence at 440 Handel Avenue, Worongary, Queensland, and the complaint specified that in mid September 2001 the applicants had noticed that the tiles in a tiled area, described as being the “pool and barbeque area”, were lifting over most of the area and the tiles were moving, and dangerous. (The complaint is exhibit “SOR-5” to a document headed “Statement of Reasons for the Decision filed in this Tribunal on 9 July 2012 by the respondent QBSA”).

The applicants submitted, with that complaint, a number of documents, which are listed in paragraph 25 of that “Statement of Reasons.” They included a current title search of the property, dated 19 May 2006, a copy of a letter dated 4 October 2011 from the male applicant to the builder, advising that because the builder had been placed in the hands of a receiver and manager, he had lodged a…

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: [2012] QCAT 641
Decision Date

CaseChat Overview and Summary

This case involves a claim by Shane Ellis and Vicki Ellis (the applicants) against the Queensland Building Services Authority (QBSA), seeking indemnification under the Queensland Home Warranty Scheme for alleged defective tiling work at their residence in Worongary. The applicants submitted a complaint to the QBSA regarding tiles lifting in the pool and barbeque area. The QBSA disallowed the claim, determining the tiling work to be "associated building work" not covered by the Statutory Insurance Scheme. The applicants sought a review of the QBSA's decision. The primary legal issue was whether the tiling work constituted "primary building work" or "associated building work" under the Queensland Building Services Authority Act 1991 and the Queensland Building Services Authority Regulation 2003. The court considered the definitions of "primary building work" and "associated building work" and the applicability of these definitions to the tiling work in question. The court found that the tiling work in the applicants' case, particularly the tiles under the newly constructed roof, should be considered "primary building work" as it was integral to the residence's living space and part of the major extensions to the dwelling. The court set aside the QBSA's decision and directed the QBSA to reconsider the applicants' claim, requesting a detailed statutory declaration from the applicants about the building work performed and the specific tiles in question. The QBSA was also directed to follow the reasoning and decision of the Tribunal in Jones v QBSA [2010] QCAT 563 in making its determination.

Orders