Mannix v Queensland Building Services Authority (QBSA) - [2013] QCAT 406

CITATION:

Mannix v Queensland Building Services Authority (QBSA) [2013] QCAT 406

PARTIES:	Mr Steven Mannix and Mrs Rebecca Mannix (Applicants)
v
Queensland Building Services Authority (QBSA) (Respondent)

APPLICATION NUMBER:

GAR078-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

6-7 June 2013

HEARD AT:

Mackay

DECISION OF:

Graham Quinlivan, Member

DELIVERED ON:

2 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Authority dated 30 November 2011 is confirmed.

CATCHWORDS:

Costs - apology - damages

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Steven Mannix and Mrs Rebecca Mannix

RESPONDENT:

Mr Brendan Cole, Solicitor, Queensland Building Services Authority.

REASONS FOR DECISION

During 2008/2009, Mr and Mrs Mannix had a house built for their family at 13 Kew Court, Glenella, Queensland.

Since that time Mr and Mrs Mannix have had a number of disputes regarding the construction, firstly with the builder and subsequently with the Queensland Building Services Authority.

On 30 November 2011, the QBSA wrote to Mr and Mrs Mannix regarding their insurance entitlement under the BSA Home Warranty Insurance Policy. The QBSA advised them that they may be eligible for insurance assistance and that the reasonable cost of rectification would be determined by calling quotes from licensed contractors. A copy of a proposed Scope of Works was included with the letter.

On 3 January 2012 Mr and Mrs Mannix filed an application for a review of the QBSA’s decision on the Scope of Works requirements made on 30 November 2011 and the findings of the building certifier’s investigations for 13 Kew Ct, Glenella made on 20 December 2011.

When conducting a review, the Tribunal has the power to confirm or amend the decision, set aside the decision and substitute (its own decision); or set aside the decision and return the matter for reconsideration (with directions) to the Authority.

In reviewing the Authority’s decision, the Tribunal effectively stands in the shoes of the Authority, exercising the same powers under the Building Act 1975 to produce the correct and preferable decision[1].

[1] Queensland Civil and Administrative Tribunal Act 2009 s 20(1).

The Tribunal must hear and decide the review by way of a fresh hearing on the merits. That means that the Tribunal can consider material that was not before the Authority at the time it made its decision.[2]
[2] The standard of proof to be applied by the Tribunal is the civil standard on the balance
of probabilities as set out in the decision of Briginshaw v Briginshaw & Anor ((1938) 60
CLR 336) and applied in earlier decisions of this Tribunal.

Mr and Mrs Mannix’s case

Mr and Mrs Mannix sought to the following matters to included in the Scope of Works as the Tribunal’s correct and preferable decision in this review:
·     That mould, which is a result of the defective works, be addressed and removed since it has resulted in serious health issues for the occupants and their children.
·     That the Authority:
o   be directed to complete all directions given in the QCAT Decision 7…

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: [2013] QCAT 406
Decision Date

CaseChat Overview and Summary

In Mannix v Queensland Building Services Authority, the applicants, Mr and Mrs Mannix, sought a review of the respondent's decision regarding their insurance entitlement under the BSA Home Warranty Insurance Policy. The respondents, Queensland Building Services Authority (QBSA), had advised the applicants that they may be eligible for insurance assistance, but the applicants sought a broader scope of works and a higher claim amount. The applicants argued that the mould, defective works, and other issues in their house warranted a more extensive rectification process, potentially including demolition and reconstruction, which they believed could cost more than the $400,000 maximum limit under the insurance policy. The applicants also contended that they had properly terminated their contract with the builder, entitling them to claim under the insurance policy.

The Tribunal reviewed the legal issues surrounding the proper termination of the contract, the scope of works under the insurance policy, and the maximum entitlement of the applicants under the policy. The Tribunal determined that the previous decisions of the Tribunal and the Appeal Tribunal, which found that the applicants had wrongfully terminated the contract, were binding. Consequently, the applicants were precluded from claiming under Part 1 of the Policy Conditions. Under Parts 2 and 3, the applicants were limited to a total of $200,000 for claims related to defective work and subsidence or settlement, as these defects became apparent after practical completion when the applicants took possession of the house.

The Tribunal concluded that even if additional defects existed beyond the current scope of works, the maximum amount the applicants could be entitled to under the insurance policy would be exhausted with the work already identified in the scope of works. Therefore, there was no need to enlarge the scope of works further. The Tribunal confirmed the decision of the Authority dated 30 November 2011, finding that the applicants' claims did not entitle them to the relief they sought.

Orders