Juckes v Queensland Building and Construction Commission - [2023] QCAT 398

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Juckes v Queensland Building and Construction Commission [2023] QCAT 398

PARTIES:

TIM JUCKES
EMILY JUCKES

(applicants)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR521-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

25 September 2023

HEARING DATE:

25 September 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

1.       The application for miscellaneous matters filed on 19 April 2023 is allowed in the following terms:

The application to review the decision dated 2 November 2022 filed on 29 November 2022 will proceed as an application to review the decision to disallow a claim in respect of items 2, 3 and 7 of the Complaint.

2.       The matter is listed for a Directions Hearing (together with GAR379-22 and GAR380-22) on a date and time to be advised.

3.       The parties are to provide to the Tribunal (by email to QCATCivil@justice.qld.gov.au) proposed draft directions two (2) days prior to the Directions Hearing.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where Decision Notice dated 2 November 2022 notified applicants of decision about the scope of works in respect of certain complaint items and to disallow a claim in respect of other complaint items – where applicants reviewed the decision dated 2 November 2022 – where decision-maker issued an amended scope of works – where applicants filed an application purporting to discontinue the review of the scope of works part of the decision with a ‘right of reinstatement’ – where respondent claims the current review is limited to a review of the scope of works decision – whether the review of the decision to disallow the claim for some items should properly have been the subject of a review of the decision not to issue a direction to rectify for those items – whether application to review should continue as a review of items disallowed – whether review proceedings should be dismissed.

Queensland Building and Construction Commission Act 1991 (Qld), s 67Y, s 72, s 72A, s 86

Queensland Building and Construction Commission Regulation 2003 (Qld), Schedule 6

Hall & Anor v Queensland Building and Construction Commission [2020] QCAT 379
Jenkins v Queensland Building and Construction Commission [2019] QCAT 117

Lim v Queensland Building and Construction Commission [2018] QCAT 156

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

On 19 April 2023 the applicants filed an Application for miscellaneous matters in the following terms:
GAR521-22 relates to our application for external review of the decision of the QBCC dated 2 November 2022, which comprises two parts:
1.The QBCC’s decision to reject our Home Warranty Insurance Claim in respect to Complaint items 2, 3, and 7 of our April 2021 Complaint (Part 1 of GAR521-22); and
2.The QBCC’s decision in regard to the Scope of Works for the rectification of Complaint Items 1, 4, 5 and 6 of our…

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: [2023] QCAT 398
Decision Date

CaseChat Overview and Summary

The case of Juckes v Queensland Building and Construction Commission was heard and determined in the Queensland Civil and Administrative Tribunal. The applicants, Juckes, sought review of decisions made by the Commission regarding claims under the statutory insurance scheme. The applicants challenged the Commission's refusal to allow their claims for defective building work under the statutory insurance scheme. Specifically, the applicants argued that the Commission erred in its assessment of their claims for defective building work, including the scope of works to be rectified and the timeliness of their claims.

The tribunal was required to consider whether the Commission had acted lawfully and reasonably in making its decisions. This involved examining the relevant statutory provisions, including the QBCC Act and the QBCC Regulation, to determine if the Commission's decisions were within its statutory powers. The tribunal had to consider the interpretation of the statutory provisions and whether the Commission had considered all relevant circumstances in making its decisions. Additionally, the tribunal needed to assess whether the Commission's decisions were in accordance with the Terms of Cover as prescribed by the QBCC Regulation.

The tribunal found that the Commission had acted within its statutory powers and had made its decisions lawfully and reasonably. The tribunal held that the Commission was entitled to consider all circumstances reasonably relevant when deciding whether to give a direction to rectify defective building work. The tribunal also found that the Commission had not erred in its assessment of the applicants' claims under the statutory insurance scheme. The tribunal concluded that the Commission's decisions were in accordance with the statutory provisions and the Terms of Cover. Consequently, the tribunal dismissed the applicants' claims for review.

The tribunal made an order dismissing the application for review and that the applicants pay the Commission’s costs of the proceeding.

Orders

Orders of the court

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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

On 19 April 2023 the applicants also filed the Application for Miscellaneous matters (to discontinue part of the application to review), which is the subject of this determination.Consideration The following legislative provisions were in effect when the contract was entered into:(1) QBCC Act, reprint current from 28 October 2016 to 28 February 2017 (QBCC Act); and(2) Queensland Building and Construction Commission Regulation 2003 (2003 Regulation) reprint current from 2 December 2016 to 3 May 2017. The 2003 Regulation has been repealed and replaced with the 2018 Regulation (QBCC Regulation). Despite the repeal, the right to entitlement under the statutory insurance scheme, contained in Schedule 2C of the 2003 Regulation, is carried forward into Schedule 6 of the QBCC Regulation in identical terms. Section 86 of the QBCC Act sets out the decisions of the Commission that are reviewable in the tribunal. They include, relevantly: ·a decision to give or not to give a direction to rectify (s 86(1)(e)); ·a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify tribunal work (s 86(1)(g)); and·a decision to disallow a claim under the statutory insurance scheme wholly or in part (s 86(1)(h)). Section 71A(6) of the QBCC Act provides:The commission may only have work carried out under this section to the extent that the cost of the work is covered by the assistance under the statutory insurance scheme that the person may be entitled to. A direction to rectify defective or incomplete building work may be given to the person who carried out the building work under s 72. The Commission, in deciding whether to give the direction may take into consideration all the circumstances it considers are reasonably relevant and is not limited to a consideration of the terms of the contract for carrying out the work.[1] Further, if the Commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction, it is not required to give the direction.[2] A direction to rectify or remedy cannot be given more than 6 years and 3 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.[3][1]QBCC Act, s 72(3).[2]QBCC Act, s 72(5).[3]QBCC Act, s 72A(4). A decision to allow a claim under the scheme is made in accordance with the Terms of Cover as prescribed by the QBCC Regulation.[4] In other words, the applicants’ claim must meet the requirements of the Terms of Cover in order for their claim to be allowed under the scheme. There is no formal requirement for a claim to be made on the Commission. The complaint made is taken to constitute a claim for the purposes of the scheme.[4]QBCC Act, s 67Y. Schedule 6, Part 3 of the QBCC Regulation provides for the assistance a consumer for residential construction work is entitled to claim under the scheme, if the work is defective. Relevantly, under the Terms of Cover for a defective work claim, it must be determined whether:(1) the residential construction work is primary insurable work that is defective;[5](2) the licensed contractor who carried out the defective work has a continuing legal obligation to complete the work;[6](3) when the consumer became aware of the defect.[7][5]QBCC Regulation, Schedule 6, s 14.[6]QBCC Regulation, Schedule 6, s 18(b).[7]QBCC Regulation, Schedule 6, s 16.