Jones v Queensland Building Services Authority - [2010] QCAT 563

CITATION:

Jones v Queensland Building Services Authority [2010] QCAT 563

PARTIES:	Ms Sandra Fay Jones
v
Queensland Building Services Authority

APPLICATION NUMBER:

QR261-09

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

24 August 2010

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver – Senior Member

DELIVERED ON:

10 November 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is allowed.

2. The decision of the respondent of 7 December 2009 is set aside and in lieu thereof a decision that the defective building the subject of the direction to rectify No 33762 is primary building work.

CATCHWORDS :

Insurance – where claim disallowed under the respondent’s Home Warranty Insurance Scheme – whether tiling work on a concourse between the residence and an inground swimming pool is “primary building work” or “associated building work” within the meaning of those terms in ss 11 and 12 of the Regulations to the Queensland Building Services Authority Act – where meaning of “construction of a residence” considered.

Queensland Civil and Administrative Tribunal Act 2009, s 20
Queensland Building Services Authority Regulations 2003, ss11 and 12

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 058

Ross v Queensland Building Services Authority & Raymond (2006) QCCTB 170

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Ms Sandra Fay Jones represented herself
RESPONDENT:	Queensland Building Services Authority represented by Ms Stroud, a Solicitor of the Building Services Authority

REASONS FOR DECISION

The application

This is an application to review a decision of the Queensland Building Services Authority made on 7 December 2009 to refuse to allow a claim for defective tiling carried out by the builder of their house at 16-16 Herron Close, Cashmere in 2005.

The application for review is made pursuant to section 86 of the Queensland Building Services Authority Act. The purpose of the review hearing is for the Tribunal to produce the correct or preferable decision by way of a fresh hearing on the merits.[1]
[1] QCAT Act section 20. Kehl v Board of Professional Engineers of Queensland [2010] QCATA 058

Background

On 7 July 2004 the Applicant contracted with Didsbury Pty Ltd (“the builder”) for it to build their house at 14–16 Herron Close, Cashmere for a contract price of $650,000.00. In the usual way, the builder paid the insurance premium to the Queensland Building Services Authority (“the Authority”) which insurance expires on 7 January 2011. The building works progressed to the point where practical completion was reached in March 2005 and thereafter the applicants possession of the house..

In May 2009 problems began to develop with tiling around the outside pool area at the rear of the house which is on the same level as the living area. As is evident from the plans and the photographs, the pool area is adjacent to the main living area so that there is direct access to the tiled pool concourse area from the main bedroom, rumpus room, family room and entertainment area, in fact from the whole…

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: [2010] QCAT 563
Decision Date

CaseChat Overview and Summary

In the case of Jones v Queensland Building Services Authority, the applicant, Ms Sandra Fay Jones, sought a review of a decision by the Queensland Building Services Authority (Authority) to disallow a claim under the Statutory Insurance Scheme for defective tiling work on a concourse between the residence and an inground swimming pool at her property in Cashmere. The central issue before the Tribunal was whether the tiling work constituted "primary building work" or "associated building work" under the Queensland Building Services Authority Regulations 2003. The determination of this issue was crucial, as the insurance policy only covered defects in "primary building work."

The Tribunal considered the definitions of "primary building work" and "associated building work" as set out in sections 11 and 12 of the Regulations. "Primary building work" includes the construction of a residence, while "associated building work" covers items such as fencing, landscaping, and swimming pools not part of a bathroom. The Authority argued that the tiling work beyond a notional line from the edge of the gutter to the house footing was "associated building work." However, the Tribunal found that the tiled concourse area was a continuous and integral part of the residence, forming a usable living space. The continuous surface, poured in concrete as a single pour and overlaid with the same tiles, was constructed as part of the "construction of the residence" and included in the contract price.

Consequently, the Tribunal concluded that the tiling work constituted "primary building work" and was not "associated building work." The Tribunal set aside the Authority's decision of 7 December 2009 and allowed the application, finding that the defective work fell within the definition of "primary building work." The decision ensured that Ms Jones would receive the benefit of the insurance policy for the rectification of the tiling defects.

Orders