Fewster v Queensland Building and Construction Commission - [2021] QCAT 251

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Fewster and Anor v Queensland Building and Construction Commission and Anor [2021] QCAT 251

PARTIES:

JOANNE FEWSTER

MARK ANGUS
(applicants)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

WILLYCRETE PTY LTD

(respondents)

APPLICATION NO/S:

GAR080-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

14 July 2021

HEARING DATE:

10 May 2021

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1. The correct and preferable decision is to confirm the decision of the Queensland Building and Construction Commission dated 3 February 2020 not to give a direction to rectify.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where applicant sought review of decision by Commission to disallow claim under the Queensland Home Warranty Insurance Scheme – where applicant failed to discharge evidential onus – where issues beyond builder’s control – where no evidence of breach of industry standards or building codes – where contractual issues only - where unfair to issue direction to rectify - where Commission’s decision confirmed

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 7, s 72

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 28

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Birrell v Queensland Building Services Authority [2013] QCAT 56
Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCAT 59
Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69
Briginshaw v Briginshaw (1938) 60 CLR 336
Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323
Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
Delahunty v Queensland Building Services Authority [2013] QCAT 639
Dixon Projects Pty Ltd v Queensland Building Services Authority [2009] QCCTB 2
Harley v Department of Justice and Attorney-General [2012] QCAT 620
Harris v Foxworth Pty Ltd [2013] QCATA 133
Ireland v Queensland Building Services Authority [1999] QBT 180
Kehl v Board of Professional Engineers of Qld [2010] QCATA 58
Laidlaw v Queensland Building Services Authority [2010] QCAT 70
O’Brien v Gladstone Regional Council [2015] QCATA 82
Olindaridge Pty Ltd & Wagner v Tracey [2014] QCATA 207
R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228
Ramke Constructions Pty Ltd v Queensland Building Services Authority (No. 2) [2013] QCAT 575
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212
W&E Carlsen Builders v Tressider [2014] QCAT 131
Walker v Queensland Building and Construction Commission [2014] QCAT 228
Young v Queensland Building Services Authority [2014] QCAT 75

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondents:

SE Seefeld of Counsel instructed by Holding Redlich for Queensland Building and Construction Commission

P Williams, Director for Willycrete Pty Ltd

REASONS FOR DECISION
What is this application about?

Joanne Fewster and Mark Angus applied to review a decision by the Queensland Building and Construction Commission on 3 February 2020 to not give a direction to Willycrete Pty Ltd to rectify its work on…

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: [2021] QCAT 251
Decision Date

CaseChat Overview and Summary

The case of Fewster v Queensland Building and Construction Commission involves a dispute between Joanne Fewster and the Queensland Building and Construction Commission, with Mark Angus also a party. The primary issue before the tribunal was whether the Commission should be directed to rectify certain defects identified in a building project. The tribunal had to determine whether issuing such a direction would be fair and appropriate given the circumstances.

The legal issues centred on whether the Commission's decision not to issue a direction to rectify was justified. The tribunal considered whether the defects identified were within the control and scope of the contractor, Willycrete, and whether rectifying them would be fair and proportionate. Additionally, the tribunal examined the sufficiency of the evidence provided by the applicants to support their claims. The applicants needed to discharge their evidential burden to establish that the Commission's decision was incorrect.

The tribunal concluded that the Commission's decision not to issue a direction to rectify was correct and preferable. The tribunal found that many of the defects identified were beyond Willycrete's control or fell outside the scope of their contractual obligations. Furthermore, the tribunal noted the absence of independent expert evidence to support the applicants' claims and held that without such evidence, it could not make the orders sought. The tribunal held that the Commission's decision should be confirmed, as issuing a direction to rectify would be unfair and disproportionate.

In summary, the tribunal confirmed the Commission's decision not to issue a direction to rectify the identified defects. The tribunal found that the applicants had not discharged their evidential burden and that the Commission's decision was fair and appropriate given the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Similarly, although item 10 was found to be defective, it would be unfair to direct Willycrete to rectify because it did not contract to connect the drainage to the stormwater: plumbing was outside the scope of works.[38] [38]Quotation dated 18 July 2018; Contract dated 10 July 2019; Tax Invoice No. 920 of Willycrete Pty Ltd dated 1 October 2019; Statement of Joanne Fewster and Mark Angus dated 30 September 2020, pp 4, 5. What is the correct and preferable decision? Ms Fewster and Mr Angus did not provide any independent expert evidence to support the decision they seek or to contradict Mr Sanders’ evidence. In conducting a proceeding, the Tribunal must act fairly and according to the substantial merits of the case.[39] It is not bound by the rules of evidence and may inform itself in any manner it considers appropriate.[40] That does not mean, however, that the rules of evidence are to be ignored.[41] Ms Fewster and Mr Angus did not possess specialised knowledge or independence and provided no independent expert evidence to help the Tribunal arrive at the correct and preferable decision. [39]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).[40]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b), (c).[41]R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228, 256 (Evatt J). Without independent expert evidence to the contrary, the Tribunal is not satisfied to adjust Mr Sanders’ findings.[42] Without sufficient supporting evidence, the Tribunal is unable to make the orders Ms Fewster and Mr Angus seek.[43] The Tribunal is not satisfied that Ms Fewster and Mr Angus adduced evidence sufficient to discharge their evidential onus.[42]Birrell v Queensland Building Services Authority [2013] QCAT 56, [37]; Young v Queensland Building Services Authority [2014] QCAT 75, [44].[43]Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [22] - [25]; Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCAT 59, [67]. The evidence is that it would be unfair to issue a direction to rectify item 1 because the issues were beyond Willycrete’s control and ordering rectification would be disproportional to the defect. It would be unfair to issue a direction to rectify items 2, 3, 4, 5, 6, 7 and 9 because they raise contractual issues only. It would be unfair to issue a direction to rectify item 8 because of the lack of evidence of any breach of standards or codes and ordering rectification would be disproportional to the defect. It would be unfair to issue a direction to rectify item 10 because it would require Willycrete to do something more than it contracted to do. The correct and preferable decision is to confirm the decision of the Commission dated 3 February 2020 not to give a direction to rectify.

Ratio Decidendi

Legal Principle Established

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CITATION:	Fewster and Anor v Queensland Building and Construction Commission and Anor [2021] QCAT 251
PARTIES:	JOANNE FEWSTER MARK ANGUS (applicants)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION WILLYCRETE PTY LTD (respondents)
APPLICATION NO/S:	GAR080-20
MATTER TYPE:	General administrative review matters
DELIVERED ON:	14 July 2021
HEARING DATE:	10 May 2021
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	1. The correct and preferable decision is to confirm the decision of the Queensland Building and Construction Commission dated 3 February 2020 not to give a direction to rectify.
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where applicant sought review of decision by Commission to disallow claim under the Queensland Home Warranty Insurance Scheme – where applicant failed to discharge evidential onus – where issues beyond builder’s control – where no evidence of breach of industry standards or building codes – where contractual issues only - where unfair to issue direction to rectify - where Commission’s decision confirmed Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 7, s 72 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 28 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Birrell v Queensland Building Services Authority [2013] QCAT 56 Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCAT 59 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 Briginshaw v Briginshaw (1938) 60 CLR 336 Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323 Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Delahunty v Queensland Building Services Authority [2013] QCAT 639 Dixon Projects Pty Ltd v Queensland Building Services Authority [2009] QCCTB 2 Harley v Department of Justice and Attorney-General [2012] QCAT 620 Harris v Foxworth Pty Ltd [2013] QCATA 133 Ireland v Queensland Building Services Authority [1999] QBT 180 Kehl v Board of Professional Engineers of Qld [2010] QCATA 58 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 O’Brien v Gladstone Regional Council [2015] QCATA 82 Olindaridge Pty Ltd & Wagner v Tracey [2014] QCATA 207 R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 Ramke Constructions Pty Ltd v Queensland Building Services Authority (No. 2) [2013] QCAT 575 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212 W&E Carlsen Builders v Tressider [2014] QCAT 131 Walker v Queensland Building and Construction Commission [2014] QCAT 228 Young v Queensland Building Services Authority [2014] QCAT 75
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondents:	SE Seefeld of Counsel instructed by Holding Redlich for Queensland Building and Construction Commission P Williams, Director for Willycrete Pty Ltd