Hopper v Queensland Building and Construction Commission (No. 2) - [2019] QCAT 212

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 102

Statutory 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

Whalley v Queensland…

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: [2019] QCAT 212
Decision Date: 24 July 2019

CaseChat Overview and Summary

In Hopper v Queensland Building and Construction Commission (No. 2), the Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing a decision by the Queensland Building and Construction Commission (QBCC) rejecting a claim by a building owner. The dispute centred on whether the building owner validly terminated a building contract, particularly in the context where the building contractor had also purported to terminate the contract. The tribunal was called upon to determine the respective rights of the building owner and contractor under the contract and at law, and to assess the validity of the QBCC's decision.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 102 Statutory 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 Whalley v Queensland…