SUPREME COURT OF QUEENSLAND
CITATION:
Lange v Queensland Building Services Authority [2011] QCA 58
PARTIES:
SHANE ANDREW LANGE
(appellant)
v
QUEENSLAND BUILDING SERVICES AUTHORITY
(respondent)FILE NO/S:
Appeal No 9164 of 2010
SC No 1930 of 2009DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
1 April 2011
DELIVERED AT:
Brisbane
HEARING DATE:
24 February 2011
JUDGES:
Margaret McMurdo P, Margaret Wilson AJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
The appeal is dismissed with costs.
CATCHWORDS:
PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where appellant’s company contracted to build three townhouses for owners – where townhouses comprised one detached dwelling and one duplex – where owners covered by insurance policy pursuant to the Queensland Building Industry Services Authority Act 1991 (Qld) – where respondent’s liability limited under the policy – where work was not completed – where owners terminated contract – where owners successfully claimed $200,000 from respondent on policy – where respondent sought indemnity from appellant pursuant to Queensland Building Industry Services Authority Act 1991 (Qld) s 111C – whether exclusion clause in policy applicable
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – where insurance policy a statutory instrument – whether exclusion clause applicable – whether "residential construction work" has same meaning throughout policy – whether contra proferentem maxim applicable – whether later legislative amendment can inform interpretation of policy – whether "payment on a claim under the insurance scheme" pursuant to Queensland Building Industry Services Authority Act 1991 (Qld), s 71 and s 111C
Acts Interpretation Act 1954 (Qld), s 14B
Judicial Review Act 1991 (Qld), s 4, s 20
Queensland Building Services Authority Act 1991 (Qld) (Reprint No 8E), s 3, s 4 (Schedule 2), s 5, s 9(a), s 9A, s 69(2), s 71(1), s 111C
Queensland Building Services Authority Act 1991 (Qld) (Reprint No 8F), s 70A
Queensland Building Services Authority Insurance Policy Conditions, Edition 7, 29 September 2006, cl 1.1, cl 1.9, cl 2.1(a), cl 2.4(c), cl 2.6 3.1(a), cl 3.4(b), cl 3.6, cl 9
Queensland Building Services Authority Regulation 2003 (Qld) (Reprint No 2E), s 9, s 10, s 11, s 12
Statutory Instruments Act 1992 (Qld)Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203; [1991] FCA 78, cited
Insurance Commission (WA) v Container Handlers Pty Ltd (2004) 218 CLR 89; [2004] HCA 24, cited
Interlego AG & Anor v Croner Trading Pty Ltd (1992) 39 FCR 348; [1992] FCA 624, cited
Johnson v American Home Assurance Company (1998) 192 CLR 266; [1998] HCA 14, cited
King v Victoria Insurance Co Ltd [1896] AC 250, cited
Lange v Queensland Building Services Authority [2010] QSC 266, cited
McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579; [2000] HCA 65, citedCOUNSEL:
G J Gibson…
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- Case
- [2011] QCA 58
- Decision Date
CaseChat Overview and Summary
The court held that the exclusion clause in question did not apply to the facts of this case. It found that the clause was intended to cover specific types of buildings and not to create nonsensical results that would allow the QBSA to escape liability. The court noted that the policy was a statutory instrument, and thus, its interpretation should best achieve the purpose of consumer protection as set out in the Act. Furthermore, the court found that "residential construction work" had the same meaning in the Act, the QBSA Regulation, and the policy. The court also observed that the purpose of the Act was consumer protection, and the policy should be construed to best achieve this purpose. The court rejected Lange’s argument that a later legislative amendment could inform the interpretation of the policy, holding that such amendments could not be used to retrospectively alter the meaning of the policy.
The appeal was dismissed with costs, and Lange was ordered to pay the QBSA’s costs. The court concluded that the QBSA was correct in its interpretation that the exclusion clause did not apply and that the homeowners were entitled to payment. The court further held that the purpose of the legislation and the policy was to protect consumers, and the interpretation that best achieved this purpose should be preferred. The court also noted that if the legislature had intended for the exclusion clause to apply in circumstances such as these, it would have been relatively simple to incorporate this into the clause.
Orders
Orders of the court
The appeal is dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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