Fenwick v Queensland Building Services Authority

CITATION: Fenwick v Queensland Building Services Authority [2011] QCAT 39

PARTIES:	Mr Don Charles Fenwick
v
Queensland Building Services Authority

APPLICATION NUMBER:   QR165-08

MATTER TYPE: General administrative review matters

HEARING DATE:      On the papers

HEARD AT:     Brisbane

DECISION OF: Barry Cotterell, Member

DELIVERED ON: 7 February 2011

DELIVERED AT:       Brisbane

ORDERS MADE:

1.     The decision of 27 June 2008 assessing the entitlement of the Applicant in respect of his claim under the statutory insurance scheme as being the sum of $ nil is set aside.

2.     The Applicant is entitled to payment in the sum of $171,212 plus relocation costs of $5,000 and interest of $351.75 making a total of $176,563.75 in respect of his claim under the statutory insurance scheme.

3.     The parties will file in the registry and exchange written submissions in relation to costs within 14 days of the date of this order and will state in those submissions whether they agree to the issue of costs being determined on the papers or whether they wish a date to be allocated for a costs hearing.

CATCHWORDS :  Review application – statutory insurance scheme – clauses 1.4 and 1.6 of the policy – clause 1.6 limitation – assessment of the reasonable cost of completing the contract – assessment at date of termination or when – method for assessing underpricing

APPEARANCES and REPRESENTATION (if any):

Decision on the papers

REASONS FOR DECISION

The Application

1. This is an Application to review the Respondent’s decision dated 27 June 2008 to reject the Applicant’s claim for insurance made pursuant to the statutory insurance scheme administered by the Respondent (“the Decision”).

2. The Tribunal has jurisdiction to review the Decision by virtue of sections 86(1)(h) of the Queensland Building Services Authority Act 1991 (QId) (“the QBSA Act'') and Part 1, Division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (QId) (“the QCAT Act'').

Background

1. It is common ground that the history of the matter is as follows:

(a)on 7 November 2007, the Applicant entered into a contract for building work (“the contract”) with a builder called Space Plus Additions Pty Ltd (“Space Plus”) and a policy of insurance was issued by the Respondent in relation to the Contract;

(b)the price of the works as set out in the Contract was $309,000.00;

(c)some work was performed by Space Plus between 13 November 2007 and 26 November 2007 and the Applicant claims to have paid a deposit of $15,450.00 and a further sum of $30,900.00 (totalling $46,350.00) to Space Plus in consideration of that work;

(d)Space Plus was subsequently placed into liquidation;

(e)the Contract was terminated by the Applicant on or about 17 December 2007.  After receiving credit for the amount already paid to the Builder, the Applicant's remaining liability under the Contract was $262,650.00;

(f)on or about 7 December 2007 a claim was made by the Applicant pursuant to the statutory insurance scheme;

(g)the Respondent called tenders for the completion of the work which was left unfinished by Space Plus.  Consequently, in February…