Feinbloom v Queensland Building and Construction Commission - [2023] QCAT 31

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Feinbloom v Queensland Building and Construction Commission [2023] QCAT 31

PARTIES:

Douglas Feinbloom

(applicant)

v

Queensland Building and Construction Commission

(respondent)

APPLICATION NO/S:

GAR004-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

18 January 2023

HEARING DATE:

12 February 2021

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Fitzpatrick

ORDERS:

1. The Tribunal amends the decision the subject of these review proceedings.

2. The correct and preferable decision is that the applicant’s claim on the Home Warranty Scheme policy of insurance set out in Schedule 2C of the Queensland Building and Construction Commission Regulation 2003, in force from 2 December 2016 to 3 May 2017, is allowed to meet the cost of rectification of the items of defective work set out in the letter from the Queensland Building and Construction Commission dated 24 April 2019. The assistance the applicant is entitled to under the Home Warranty Scheme is reduced by the liability amount for the work in the sum of $119,788.30.

3. If an order for costs is sought written submissions must be filed in the Tribunal and given to the other party by 4.00pm 3 February 2023, with any submissions in response filed in the Tribunal and given to the applicant party by 4.00pm 17 February 2023. Any application for costs will be determined on the papers without an oral hearing, not before 17 February 2023.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant sought external review of a decision in relation to the liability amount under the Home Warranty Insurance Scheme – relevant policy in force – meaning of liability amount – where settlement agreement entered after termination of contract – whether liability amount affected.

Queensland Building and Construction Commission Act 1991 (Qld), s 68, s 69, s 69A

Queensland Building and Construction Commission Act 1991 (Qld), s67A, s 67X, s 68A, s 68B, s 68F, s 68H, s 68I, s 71A
Queensland Building and Construction Commission Regulation 2003 (Qld), Schedule 2C, s 1, s 15(4)
Queensland Building and Construction Commission and Other Legislation Amendment (Postponement) Regulation 2015
Queensland Building and Construction Commission and Other Legislation Amendment Regulation (No2) 2016, s 2, s 10
Queensland Building and Construction Commission and Other Legislation Amendments Act 2014, s 36
Queensland Civil and Administrative Tribunal Act 2009 (Qld), Division 3

Statutory Instruments Act 1992 (Qld) in force 28 February 2015 to 28 February 2017, s 51

Arthur v QBSA [1997] QBT 165

Bellgrove v Eldridge (1954) 90 CLR 613
DCT v Moore Bank Pty Ltd (1986) 1 Qd R 414
Fibreglass Pool Works (Manufacturing) Pty Ltd v ICI Australia Pty Ltd (1992) 1 Qd R 149
Godbold v QBCC [2014] QCAT 537
Illing v QBSA QBT 156
Littlewood v George Wimpey & Co Ltd [1953] 2 All ER 915
McDonald v QBSA [2004] QCCTB 181
Schneider v Queensland Building and Construction Commission [2021] QCA 155
Sutton v QBSA [2000] QBT 3

The State of Western Australia v Cunningham [No…

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: [2023] QCAT 31
Decision Date

CaseChat Overview and Summary

Douglas Feinbloom has sought external review of a decision by the Queensland Building and Construction Commission (QBCC) in relation to the liability amount under the Home Warranty Insurance Scheme. The relevant policy in force is Schedule 2C of the Queensland Building and Construction Commission Regulation 2003. The court had to determine the correct interpretation of the "remaining liability" as it is referred to in the relevant policy of insurance, and the correct calculation of Dr Feinbloom’s "remaining liability" to be deducted from any insurance amount approved for the rectification of the window defects. The QBCC asserts that the relevant insurance policy is Schedule 6 of the Queensland Building and Construction Commission Regulation 2018. The court found that the relevant insurance policy is Schedule 2C of the Queensland Building and Construction Commission Regulation 2018, in force as at 6 January 2017. The QBCC found that the remaining liability of Dr Feinbloom at the time the contract ended was the adjusted combination of Stage 10 and the Practical Completion progress claims. The court found that the QBCC’s calculation of the liability amount in the sum of $119,788.30 was correct. The court amended the decision the subject of these review proceedings. The correct and preferable decision is that Dr Feinbloom’s claim on the Home Warranty Scheme policy of insurance set out in Schedule 2C of the Queensland Building and Construction Commission Regulation 2003, in force from 2 December 2016 to 3 May 2017, is allowed to meet the cost of rectification of the items of defective work set out in the letter from the Queensland Building and Construction Commission dated 24 April 2019. The assistance Dr Feinbloom is entitled to under the Home Warranty Scheme is reduced by the liability amount for the work in the sum of $119,788.30.

Orders