Fane v Queensland Building and Construction Commission

CITATION: Fane v Queensland Building and Construction Commission [2017] QCAT 59

PARTIES:	Peter Eugene Fane (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER: GAR046-16

MATTER TYPE: General administrative review matters

HEARING DATE: 9 February 2017

HEARD AT: Brisbane

DECISION OF: Member Hughes

DELIVERED ON: 28 February 2017

DELIVERED AT: Brisbane

ORDERS MADE:

The decision of the Queensland Building and Construction Commission dated 6 June 2016 to decline the claim under the statutory insurance scheme is confirmed.

CATCHWORDS:

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

CLASS OF DEFECT - whether defect ‘category 1’ or ‘category 2’ – where definitions focus on impact of defect – where home owner did not provide independent expert evidence of impact of defect on structural integrity, function or safety – where based on expert evidence, defect properly classed as ‘category 2’

PERIOD OF COVER FOR ‘CATEGORY 2’ DEFECT– whether defect within period of cover – where defect evident at least nine months after period of cover – where Commission not liable under policy of insurance – whether Tribunal can extend period of cover – where language of clause proscriptive and mandatory – where no provision to extend time or exercise discretion – where time limit is strict and Tribunal cannot extend period of cover

TIME PERIOD TO CLAIM IF ‘CATEGORY 1’ DEFECT – where defect within period of cover if ‘category 1’ - whether claim within time – where home owner descriptions consistent with defect first becoming objectively evident on 15 January 2015 - where claim made six months outside time limit

EXTENSION OF TIME IF ‘CATEGORY 1’ DEFECT - whether Tribunal should extend time
– whether reasonable explanation for delay – where purpose of time limit is to ensure Commission is given notice of facts and circumstances giving rise to claim to enable action to protect home owner and insurance fund – where home owner has obligation to act in own best interests – where not in home owner’s own best interests to wait until defect became “more pronounced” – where home owner failed to mitigate loss and delayed early remedial action – where no evidence that home owner attempted to locate documents when defect first became evident - where means of Commission’s knowledge within home owner’s control and has therefore obliged to notify Commission promptly – where not in home owner’s best interests to wait for builder to examine cause of defect – where complaint form did not require technical expertise to complete and required details that would or should reasonably have been within home owner’s knowledge – where being overseas did not obviate home owner’s obligations as responsible home owner – where home owner understood claims process from previous complaints – where home owner should reasonably have known time limits and was on notice to be conscientious about making claim - where no reasonable explanation for delay – where delay prejudiced Commission by increasing its potential liability…