QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Hopper & Anor v Queensland Building and Construction Commission & Anor (No. 2) [2019] QCAT 212
PARTIES:
NEIL HOPPER and JULIE HOPPER
(applicants)v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(first respondent)
SUCCESS HOMES PTY LTD ACN 158 083 204 (FORMERLY KNOWN AS WIDEBAY BUILDING SERVICES PTY LTD)
(second respondent)APPLICATION NO/S:
GAR375-18
MATTER TYPE:
Building matters
DELIVERED ON:
24 July 2019
HEARING DATE:
28 November 2018
HEARD AT:
Bundaberg
DECISION OF:
Member Milburn
ORDERS:
1. The decision of the QBCC dated 9 February 2017 is set aside and replaced with a decision by the tribunal.
2. The tribunal allows the applicants’ claim for a non-completion under the Queensland Home Warranty Scheme in accordance with Part 5 of the Queensland Building and Construction Commission Act 1991 (Qld).
3. Any party may make an application for costs consequent upon this decision, by the filing of a Miscellaneous Application together with supporting submissions, if desired.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – General Administrative Review – application by building owner to review a decision by the Queensland Building and Construction Commission to reject a claim by building owner – whether the building owner validly terminated a building contract – where the building contractor also purported to terminate the contract – the rights of the building contractor and the building owner under contract and at law – where the tribunal reviews the decision of the QBCC about valid termination of the contract by the building owner and allows a claim under the statutory scheme in favour of the building owner
Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 42, s 65, s 66, s 68, s 69, s 71, s 72, s 86, s 87, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 20, s 102Statutory Instruments Act 1992 (Qld), s 7, s 9
Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd & Anor (2007) 233 CLR 115
Cowen & Anor v Queensland Building and Construction Commission & Anor [2017] QCAT 416
Shevill v Builders Licensing Board (1982) 149 CLR 620
MacDonald v Queensland Building and Construction Commission [2014] QCAT 158
Stanton v Queensland Building and Construction Commission [2018] QCAT 271
Hopper & Anor v Queensland Building and Construction Commission & Anor [2018] QCAT (Member Cranwell, delivered on 21 May 2018)
Botros & Anor v Freedom Homes Pty Ltd [1999] QCA 150
Mitchamy Developments Pty Ltd v Adams & anor [2010] QCAT 484
Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2012] VSC 99
Castle Constructions (QLD) Pty Ltd v Pourasad [2015] QCAT 17
Kelly v Desnoe [1985] 2 Qd R 477
Quinn Villages Pty Ltd v Mulherin [2006] QCA 433
Nina's Bar & Bistro v MBE Corporation [1984] 3 NSWLR 613
Stojanovski v Australian Dream Homes [2015] VSC 404
Perkins & Anor v Queensland Building and Construction Commission & Anor [2018] QCAT 15
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- Case
- [2019] QCAT 212
- Decision Date
CaseChat Overview and Summary
The legal issues before the tribunal involved the interpretation of the building contract, the application of statutory provisions concerning contract termination, and the jurisdiction of the QBCC to review and determine the validity of terminations. The tribunal needed to consider whether the building owner's termination was effective under both the terms of the contract and the relevant statutory framework. Additionally, the court had to examine whether the QBCC exercised its discretion correctly in dismissing the building owner's claim.
The tribunal found that the building owner's termination of the contract was valid, both under the terms of the contract and the statutory provisions. It concluded that the QBCC had erred in its assessment of the building owner's rights and in dismissing the claim. Consequently, the tribunal set aside the QBCC's decision and allowed the building owner's claim for non-completion under the Queensland Home Warranty Scheme, as per the Queensland Building and Construction Commission Act 1991. The tribunal's decision highlighted the importance of correctly applying statutory provisions and the necessity for administrative tribunals to carefully review the evidence and legal arguments presented.
The final orders of the tribunal were that the decision of the QBCC dated 9 February 2017 was set aside and replaced with a decision allowing the building owner's claim. The tribunal allowed the claim for non-completion under the Queensland Home Warranty Scheme and invited any party to apply for costs related to the decision.
Orders
Orders of the court
1. The decision of the QBCC dated 9 February 2017 is set aside and replaced with a decision by the tribunal.
2. The tribunal allows the applicants’ claim for a non-completion under the Queensland Home Warranty Scheme in accordance with Part 5 of the Queensland Building and Construction Commission Act 1991 (Qld).
3. Any party may make an application for costs consequent upon this decision, by the filing of a Miscellaneous Application together with supporting submissions, if desired.
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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