Godbolt v Queensland Building Services Authority - [2012] QCAT 313

CITATION:

Godbolt and Anor v Queensland Building Services Authority and Anor [2012] QCAT 313

PARTIES:	Mr Grant Allan Keith Godbolt Mrs Julianne Jennifer Godbolt (Applicants)
v
Queensland Building Services Authority (First Respondent) Mr John Camilleri (Second Respondent)

APPLICATION NUMBER:

GAR154-11

MATTER TYPE:

General administrative review matters

HEARING DATE:

6 March and 31 May 2012

HEARD AT:

Brisbane

DECISION OF:

Peter Walker, Member

DELIVERED ON:

19 July 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the decision of the First Respondent dated 10 May 2011 to disallow the Applicants’ claim under the Statutory Home Warranty Insurance Scheme be set aside.

2. That the Applicants’ claim under the Statutory Home Warranty Insurance Scheme be allowed.

3. That the issue of the quantum of the Applicant’s claim be remitted to the First Respondent for determination.

Directions:

1. The Applicants have leave to file and serve written submissions on the question of costs by 4pm on 3 August 2012.

2. The Respondents have leave to file and serve submissions in response by 4pm on 17 August 2012.

3. The issue of costs be determined on the papers without any oral submissions.

CATCHWORDS:

Statutory Home Warranty Insurance Scheme – proper termination of contract – meaning of insolvent and financially unable to proceed with contract – repudiation – proper order on review

Queensland Building Services Authority Act 1997, ss 86, 87
Queensland Civil and Administrative Tribunal Act 2009, ss 20, 24

Sandell v Porter (1966)115 CLR 666
Lewis v Doran [2004] NSWSC 608

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Greg Richards, Solicitor of Minter Ellison Lawyers

FIRST RESPONDENT:

Cheridan Farthing, Lawyer for the First Respondent

David Gardiner, Barrister, instructed by Eaton Lawyers for the Second Respondent

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

This is an application to review a decision of the Queensland Building Services Authority under ss 86 and 87 of the Queensland Building Services Authority Act 1991 under the Statutory Home Warranty Insurance Scheme administered by the Authority.

It appears to be uncontentious that the relevant decision here is reviewable by way of application to this Tribunal within the mechanism provided by those sections.
The decision which is the subject of the application is said to be:

The decision made by the Authority on 10 May 2011 to disallow a claim under the Statutory Insurance Scheme administered by the Authority either wholly or in part.[1]

[1] See Application.

Manner in which Review to be Conducted

In making my decision I am bound by the provisions of section 20 of the Queensland Civil and Administrative Tribunal Act 2009 which states as follows:

Review involves fresh hearing
a) The purpose of the review of a reviewable decision is to produce the correct and preferable decision.
b) The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.

It should be noted,…

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 313
Decision Date: 19 July 2012

CaseChat Overview and Summary

In the matter of Godbolt v Queensland Building Services Authority, the court was asked to review the decision of the Queensland Building Services Authority to disallow a claim under the Statutory Home Warranty Insurance Scheme. The applicant, Godbolt, sought to have the decision of the Authority set aside and the claim allowed. The Authority argued that the applicant had not satisfied the conditions necessary to make a claim under the Scheme, namely that the builder was insolvent or financially unable to proceed with the contract.

The legal issue before the court was whether the Authority had properly exercised its discretion in disallowing the applicant’s claim under the Scheme. Specifically, the court needed to determine the meaning of the terms "insolvent" and "financially unable to proceed with the contract" and whether the Authority had correctly applied those terms in its decision-making process. The court also needed to consider whether the Authority had properly considered the applicant’s evidence and arguments in making its decision.

The court found that the Authority had not properly exercised its discretion in disallowing the applicant’s claim. The court held that the term "insolvent" should be interpreted narrowly and that the term "financially unable to proceed with the contract" should be interpreted broadly. The court found that the Authority had not properly considered the applicant’s evidence and arguments and had not properly applied the relevant statutory provisions in making its decision. The court set aside the decision of the Authority and allowed the applicant’s claim, remitting the issue of the quantum of the claim back to the Authority for determination. The court also made directions regarding the issue of costs, allowing the applicant to file submissions on the question of costs and the Authority to file submissions in response, with the issue of costs to be determined on the papers without any oral submissions.

Orders

Orders of the court

1. That the decision of the First Respondent dated 10 May 2011 to disallow the Applicants’ claim under the Statutory Home Warranty Insurance Scheme be set aside.

2. That the Applicants’ claim under the Statutory Home Warranty Insurance Scheme be allowed.

3. That the issue of the quantum of the Applicant’s claim be remitted to the First Respondent for determination.

Directions:

1. The Applicants have leave to file and serve written submissions on the question of costs by 4pm on 3 August 2012.

2. The Respondents have leave to file and serve submissions in response by 4pm on 17 August 2012.

3. The issue of costs be determined on the papers without any oral submissions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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