Jackson v Queensland Building and Construction Commission - [2018] QCAT 290

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jackson & Ors v Queensland Building and Construction Commission [2018] QCAT 290

PARTIES:

BRETT JACKSON
and
GARY JACKSON
and
LYNETTE JACKSON
and
KAREN JOHNSTON
and
CHRIS JOHNSON
(applicants)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR086-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

31 August 2018

HEARING DATE:

20 July 2018

HEARD AT:

Brisbane

DECISION OF:

Member Olding

ORDERS:

The decision to wholly disallow the applicants’ claim under the statutory insurance scheme is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – statutory insurance scheme under the Queensland Building and Construction Commission Act 1991 (Qld) – whether defects category 1 or category 2 defects – whether time for making claim should be extended

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 67X

Little v QBSA (2006) QCCTB 195
Mansoor & Rezaee v Queensland Building Services Authority [2011] QCAT 53

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24

APPEARANCES & REPRESENTATION:

Applicants:

G Jackson

Respondent:

E Ward, legal counsel for the Queensland Building and Construction Commission

REASONS FOR DECISION

Despite numerous attempts to have defects remedied by the builder, the applicants remained dissatisfied with aspects of the construction of their residence.
They made a claim against the statutory insurance scheme, but the claim was out of time. The respondent Commission had a discretion to extend the time for making a claim, but in the circumstances decided it was not appropriate to do so. Hence, the Commission disallowed the claim in full.
The applicants have applied for review of the Commission’s decision to disallow the claim.
The hearing proceeded on the basis that the Tribunal should determine whether to extend the time for making the claim. If the Tribunal decided to extend the time, it should set aside the decision and return it to the Commission for assessment of the claim. If not, the decision must be confirmed.
I have decided that it is not appropriate to extend the time for making the claim. My reasons follow.
The facts
There was no dispute regarding the essential facts. The applicants provided written statements. Two of the applicants, Mr Gary Jackson and Mrs Lynette Jackson, attended the hearing, confirmed their statements and were not cross examined. The following summaries are taken from the applicants’ statements and other documents in evidence.
The insurance claim
Although the applicants listed numerous other alleged issues with the house, such as faulty lighting and switches, sinks that do not hold water and an inadequate waste system, their complaint form, which was treated as an insurance claim, is concerned with the plasterboard ceilings.
The claim details these issues:
Punch marks in ceiling

Screw marks in ceiling

Plaster off arounds screws in all ceilings

Within ceiling cavity plaster boards not stuck to beans

Plaster ceilings dropped

Ceilings warped.

A simplified chronology

The following is a chronology of some key events:
(a)18 July 2008 – construction contract entered into (and statutory insurance contract came…

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 Jackson 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: [2018] QCAT 290
Decision Date: 31 August 2018

CaseChat Overview and Summary

The applicants, Mr Gary Jackson and Mrs Lynette Jackson, sought a review of the Queensland Building and Construction Commission's (the Commission) decision to wholly disallow their claim under the statutory insurance scheme established under the Queensland Building and Construction Commission Act 1991 (Qld). The applicants' claim was lodged with the Commission more than six years after practical completion of the construction of their house, and related to defects in the plasterboard ceilings. The applicants sought an extension of time to make their claim. The Commission had rejected the claim on the basis that it was lodged outside of the statutory time limit, and because of the delay in making the claim and contacting the Commission.

The central legal issue before the court was whether the statutory time limit for making a claim under the statutory insurance scheme could be extended in these circumstances. The applicants argued that the defects were not readily apparent and only became evident over time, and that they had acted reasonably in making the claim when they did. The Commission argued that the applicants had failed to exercise their rights in accordance with the terms of the policy, and that an extension of time was not warranted.

The court found that the applicants had not established an appropriate basis for extending the time for making the claim. The court noted that the applicants had been aware of the extent of the problem with the plasterboard since at least April 2009, but had not contacted the Commission until June 2015. The court also found that the applicants had failed to mitigate their loss by not taking steps to have the builder remedy the defects. The court held that the long delay in making the claim, the unexplained delay in contacting the Commission after the defect became evident, and the prejudice to the Commission were all factors that weighed against extending the time for making the claim.

The court confirmed the Commission's decision to wholly disallow the applicants' claim under the statutory insurance scheme. The court held that the applicants' failure to exercise their rights in accordance with the terms of the policy meant that they were left without a remedy. The court noted that the time limit for making a claim was provided for under the policy terms, which had been created in the manner laid down by Parliament. An appropriate basis on which to extend the time had not been established.

The court's decision confirms the importance of exercising statutory rights within the prescribed time limits. The court found that the applicants' failure to act promptly in making their claim and contacting the Commission meant that they were not entitled to an extension of time. The decision also highlights the importance of taking steps to mitigate loss where defects are apparent, and the potential consequences of failing to do so.

Orders

Orders of the court

The decision to wholly disallow the applicants’ claim under the statutory insurance scheme is confirmed.

Background

Background to the litigation

I have decided that it is not appropriate to extend the time for making the claim. My reasons follow.The facts There was no dispute regarding the essential facts. The applicants provided written statements. Two of the applicants, Mr Gary Jackson and Mrs Lynette Jackson, attended the hearing, confirmed their statements and were not cross examined. The following summaries are taken from the applicants’ statements and other documents in evidence.The insurance claim Although the applicants listed numerous other alleged issues with the house, such as faulty lighting and switches, sinks that do not hold water and an inadequate waste system, their complaint form, which was treated as an insurance claim, is concerned with the plasterboard ceilings. The claim details these issues:Punch marks in ceilingScrew marks in ceilingPlaster off arounds screws in all ceilingsWithin ceiling cavity plaster boards not stuck to beansPlaster ceilings droppedCeilings warped. The following is a chronology of some key events:(a)18 July 2008 – construction contract entered into (and statutory insurance contract came into effect);(b)17 April 2009 – practical completion reached;(c)22 June 2015 – applicants lodged their complaint with the Commission;(d)9 December 2015 – after completing two inspections of the property (one accompanied by a representative of plasterboard supplier USG Boral Building Products Pty Ltd, Mr Jim Browning), a Commission building inspector, Mr Michael Hulme, completed an inspection report determining that the complaint items constituted a category 2 defect;(e)10 December 2015 – the Commission decided not to issue a Direction to Rectify to the builder;(f)14 October 2016 – liquidators were appointed to the builder;(g)4 April 2017 – the applicants applied to the Tribunal for review of the decision not to issue a Direction to Rectify to the builder;(h)6 September 2017 – as the builder was in liquidation, the Commission referred to the matter to its insurance division for assessment as an insurance claim;(i)28 September 2017 – the Commission decided to wholly disallow the insurance claim;(j)5 October 2017 – the Tribunal directed that the applicants’ application for review of the decision not to issue a Direction to Rectify proceed as an application to the review the Commission’s decision to wholly disallow the insurance claim.The applicants’ attempts to have the builder remedy the defects The applicants contacted the builder numerous (at least 30) times, requesting that defects be rectified. At first, they were told by the builder to make a list of defects which would be considered at the 12-month point, but the defects were not rectified. The applicants’ complaint form indicates that they had raised concerns with the builder about the ceiling by no later than ‘Upon handover & move in 18/4/09’. Although the Commission has treated this date as applicable to all of the aspects in which problems with the ceiling were alleged to have occurred, it is not clear from the claim form that this date refers to all areas or only to kitchen ceiling. The evidence establishes that the applicants’ awareness of the extent of the problem with the plasterboard emerged progressively.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In view of the long delay in making the insurance claim; the unexplained delay in contacting the Commission after the defect became evident; and the prejudice to the Commission, in my view this is not an appropriate case to extend the time for making the claim. Regrettably, the owners are left without a remedy, but this is the result of their failure to exercise their rights in accordance with the terms of the policy. The time limit is provided for under the policy terms, which have been created in the manner laid down by Parliament. An appropriate basis on which to extend the time has not been established.Conclusion It follows that the Commission’s decision to wholly disallow the insurance claim must be confirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jackson & Ors v Queensland Building and Construction Commission [2018] QCAT 290
PARTIES:	BRETT JACKSON and GARY JACKSON and LYNETTE JACKSON and KAREN JOHNSTON and CHRIS JOHNSON (applicants)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	GAR086-17
MATTER TYPE:	General administrative review matters
DELIVERED ON:	31 August 2018
HEARING DATE:	20 July 2018
HEARD AT:	Brisbane
DECISION OF:	Member Olding
ORDERS:	The decision to wholly disallow the applicants’ claim under the statutory insurance scheme is confirmed.
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – statutory insurance scheme under the Queensland Building and Construction Commission Act 1991 (Qld) – whether defects category 1 or category 2 defects – whether time for making claim should be extended Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 67X Little v QBSA (2006) QCCTB 195 Mansoor & Rezaee v Queensland Building Services Authority [2011] QCAT 53 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24
APPEARANCES & REPRESENTATION:
Applicants:	G Jackson
Respondent:	E Ward, legal counsel for the Queensland Building and Construction Commission