Hayward v Queensland Building and Construction Commission - [2021] QCAT 180

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hayward v Queensland Building and Construction Commission [2021] QCAT 180

PARTIES: JOHN HAYWARD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR074-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 May 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

1. The application for miscellaneous matters (dated 13 December 2019) is granted and the application for review filed by John Hayward on 19 February 2019 is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME - where a claim was purported to be made upon the Queensland Home Warranty Scheme out of time and not in the prescribed format - residential construction – where the claim was disallowed

Queensland Building and Construction Commission Act 1991 (Qld) s 71C, s 72(5)

Queensland Building and Construction Commission Regulation 2013 (Qld) Sch2C s 15 and s 16

Walker v Queensland Building and Construction Commission [2021] QCAT 32

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

This is an application to review a decision of the Queensland Building and Construction Commission (QBCC) made on 22 January 2019 to disallow a claim made under the Queensland Home Warranty Scheme.
The QBCC filed an application on 13 December 2019 to dismiss or strike out the application to review a decision. These reasons deal with this interim application.

Applicant’s Submissions

The applicant entered a contract with the builder Mr. Walker (the builder) in April 2017. Practical completion of the construction of Mr Hayward’s home was reached on or about 12 October 2017. In the final phases of construction, disputes about aspects of the finish led to a significant breakdown in that relationship.
The applicant submits that on 27 September 2017, at 1:51pm he contacted the QBCC through the QBCC contact centre.
On 27 November 2017 Mr Hayward again called the QBCC contact centre. He submitted that:
(a)The QBCC advised that there was no reason to send anything to the QBCC as no action could be taken until the builder had been provided with the required opportunity to complete rectification.
On 11 April 2018, at 12:47 pm Mr Hayward contacted the QBCC call centre for advice. He says he was given advice by the staff member at the call centre; he said this amounted to him being advised by the QBCC that it was acceptable to agree to an extension of anything up to one year for the rectifications.
He said that he was not told at this time that there was a need for him to provide details of the remaining defects to the QBCC for the purposes of the Home Warranty Scheme.
Mr Hayward relies upon this phone call of 11 April 2018 as the submission of his claim under the Home Warranty Scheme. He maintains that the claim does not need to be in writing or in a…

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.

Keep reading for free

Create a free CaseChat account to read Hayward v Queensland Building and Construction Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] QCAT 180
Decision Date

CaseChat Overview and Summary

The case involves John Hayward, the applicant, who brought an application for review of a decision made by the Queensland Building and Construction Commission (QBCC) on 22 January 2019 to disallow a claim made under the Queensland Home Warranty Scheme. The QBCC filed an application on 13 December 2019 to dismiss or strike out the application to review a decision. The legal issues in this case include whether the applicant's claim made during a telephone conversation with a QBCC employee on 27 November 2017 was a valid claim under the Home Warranty Scheme, and whether the claim was made within the statutory time limit. The court found that the applicant's claim made via the telephone on 27 November 2017 was not a valid claim as it was not in writing and did not meet the requirements of the legislation. The court also found that the applicant's written claim made on 8 July 2018 was out of time and, therefore, invalid. The court concluded that the application for review was misconceived and granted the QBCC's application for dismissal/striking out of the application under section 47 of the QCAT Act, and the application filed by the applicant on 19 February 2019 was dismissed.

The Queensland Civil and Administrative Tribunal (QCAT) found that the applicant's claim made via the telephone on 27 November 2017 was not a valid claim under the Home Warranty Scheme. The court found that a claim must be in writing and include any other information prescribed by a regulation that the Commission reasonably requires to decide the claim. The QBCC submitted that the Residential and Commercial Construction Work Complaint Form is the document by which a homeowner submits a claim. However, the court found that the legislation does not recognise a situation where a consumer makes an oral claim via the call centre of the QBCC. The court concluded that the applicant's claim made via the telephone on 27 November 2017 was not a valid claim as it was not in writing and did not meet the requirements of the legislation.

The court also found that the applicant's written claim made on 8 July 2018 was out of time and, therefore, invalid. The court found that the applicant became aware of the items of alleged defective building work at various times between 17 November 2017 and 29 June 2018. The court found that the complaint which was subsequently assessed as a claim under the statutory insurance claim scheme was made on 8 July 2018. In accordance with the time limit set out in Schedule 2C of the QBCC Regulation, any claim made under the statutory insurance scheme for defective building work was required to be made for structural defects by 5 February 2018 and for non-structural defects by 10 May 2018. The court found that the applicant did not make the claim in accordance with the time limits prescribed by the QBCC Regulation. The court concluded that the applicant's written claim made on 8 July 2018 was out of time and, therefore, invalid.

The court concluded that the application for review was misconceived and granted the QBCC's application for dismissal/striking out of the application under section 47 of the QCAT Act, and the application filed by the applicant on 19 February 2019 was dismissed. The court found that the applicant's claim made via the telephone on 27 November 2017 was not a valid claim under the Home Warranty Scheme and that the applicant's written claim made on 8 July 2018 was out of time and, therefore, invalid. The court found that the application for review was misconceived as it asked for a remedy that the Tribunal could not provide. The court found that the Tribunal has no discretion to extend the statutory time limits for filing claims or to overlook the requirements for the application to be in writing. The court concluded that the applicant's purported claim made orally could not be a claim within the meaning of the QBCC Regulation as it was not in writing and did not meet the requirements of the legislation. The court found that the application for review was misconceived and dismissed the application filed by the applicant on 19 February 2019.

Orders