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

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

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

PARTIES:

TENG LIM & CALEB FOO
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR029-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

22 May 2018

HEARING DATE:

22 May 2018

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

The application is dismissed as misconceived and lacking in substance.

CATCHWORDS:

INSURANCE – PROPERTY AND PECUNIARY LOSS INSURANCE – DOMESTIC BUILDING CONSTRUCTION INSURANCE – where insurer accepted some items and declined other items – where decision based mostly on earlier ‘Direction to Rectify’ – where applicant did not apply to review earlier Decisions and is now out of time to seek review of those Decisions – where Tribunal’s jurisdiction does not extend to disturbing decisions that were reviewable but not reviewed

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISMISSAL – GENERALLY – where application to review decision under Home Warranty Insurance Scheme cannot be used as de facto review of decisions about ‘Direction to Rectify’ – where applicant did not file material or direct submissions other than his disagreement with ‘Direction to Rectify’ – where Tribunal did not have power in its review jurisdiction for any purpose other than dealing with precise decision under review – where application misconceived and lacking in substance

Queensland Building and Construction Regulation 2003 (Qld), s 11

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 47

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCAT 59
Bourne v Queensland Building Services Authority [2012] QCATA 102
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
Dunbar v Commissioner of Police (2007) 51 SR (WA) 318
J & K Homes Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 269
Laidlaw v Queensland Building Services Authority [2010] QCAT 70

Orlanski v Queensland Building Services Authority [2011] QCAT 35

APPEARANCES & REPRESENTATION:

Applicant:

C Foo self-represented
T Lim no appearance, assisted by C Foo

Respondent:

M Stretton, solicitor of Holding Redlich

REASONS FOR DECISION

Is there a proper basis to review the insurance decision?

On 16 March 2018, an Acting Senior Member of the Tribunal directed that an ‘Application for miscellaneous matters’ filed by the Queensland Building and Construction Commission on 7 March 2018 be determined at the start of the hearing.
The Commission had sought urgent directions to resolve this matter prior to the hearing, originally listed on 5 and 6 April 2018. That hearing was vacated and the matter relisted for hearing on 22 and 23 May 2018.
In compliance with the direction of the Acting Senior Member, the Tribunal proceeded to determine the Commission’s ‘Application for miscellaneous matters’ at the start of the hearing on 22 May 2018.
As part of its ‘Application for miscellaneous matters’, the Commission submitted that it was not appropriate for…

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 Lim 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 156
Decision Date: 22 May 2018

CaseChat Overview and Summary

Lim sued the Queensland Building and Construction Commission over their handling of his insurance claim for domestic building construction. The Commission had accepted some of Lim's claims but rejected others, basing their decision largely on a previous 'Direction to Rectify'. Lim had not appealed this earlier decision within the allowed time frame, and now argued that the Commission should not have relied on it. Additionally, Lim sought to use his application to review the Commission’s decision as a de facto review of the 'Direction to Rectify'.

The court had to decide whether it was permissible for Lim to use his application to review the Commission’s decision as a means to challenge the earlier 'Direction to Rectify', despite the time limit for reviewing that decision having passed. The court also needed to determine whether the Commission’s decision could be reviewed in the absence of proper submissions or evidence.

The court found that the Commission was not obligated to consider the 'Direction to Rectify' as it had not been reviewed within the allowed time frame, and the Tribunal's jurisdiction did not extend to altering decisions that could have been reviewed but were not. The court also held that Lim’s application to review the Commission's decision could not serve as a de facto review of the 'Direction to Rectify', as it was not supported by proper submissions or evidence beyond Lim's disagreement with the 'Direction to Rectify'. The application was misconceived and lacked substance as it was not based on the precise decision under review.

The court dismissed the application as misconceived and lacking in substance, and no further orders were made.

Orders

Orders of the court

The application is dismissed as misconceived and lacking in substance.

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:	Lim & Anor v Queensland Building and Construction Commission [2018] QCAT 156
PARTIES:	TENG LIM & CALEB FOO (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	GAR029-17
MATTER TYPE:	General administrative review matters
DELIVERED ON:	22 May 2018
HEARING DATE:	22 May 2018
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	The application is dismissed as misconceived and lacking in substance.
CATCHWORDS:	INSURANCE – PROPERTY AND PECUNIARY LOSS INSURANCE – DOMESTIC BUILDING CONSTRUCTION INSURANCE – where insurer accepted some items and declined other items – where decision based mostly on earlier ‘Direction to Rectify’ – where applicant did not apply to review earlier Decisions and is now out of time to seek review of those Decisions – where Tribunal’s jurisdiction does not extend to disturbing decisions that were reviewable but not reviewed PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISMISSAL – GENERALLY – where application to review decision under Home Warranty Insurance Scheme cannot be used as de facto review of decisions about ‘Direction to Rectify’ – where applicant did not file material or direct submissions other than his disagreement with ‘Direction to Rectify’ – where Tribunal did not have power in its review jurisdiction for any purpose other than dealing with precise decision under review – where application misconceived and lacking in substance Queensland Building and Construction Regulation 2003 (Qld), s 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 47 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCAT 59 Bourne v Queensland Building Services Authority [2012] QCATA 102 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Dunbar v Commissioner of Police (2007) 51 SR (WA) 318 J & K Homes Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 269 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 Orlanski v Queensland Building Services Authority [2011] QCAT 35
APPEARANCES & REPRESENTATION:
Applicant:	C Foo self-represented T Lim no appearance, assisted by C Foo
Respondent:	M Stretton, solicitor of Holding Redlich