McKee v Queensland Building and Construction Commission
[2025] QCAT 438
•31 October 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
McKee v Queensland Building and Construction Commission & Anor [2025] QCAT 438
PARTIES:
IAN MCKEE (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISION
(FIRST RESPONDENT)
REEBUILD PTY LTD
(second respondent)
APPLICATION NO/S:
GAR165-24
MATTER TYPE:
General administrative review matters
DELIVERED ON:
31 October 2025
HEARING DATE:
12 September 2025
HEARD AT:
On the papers
DECISION OF:
Member Wilson
ORDERS:
1. The first respondent’s decision to deny the applicant’s claim in respect of the seven outstanding non-structural defects is set aside.
2. The matter is returned to the first respondent to deal with the applicant’s claim regarding those defects on the basis that the claim was made within time.
CATCHWORDS:
PROFESSIONS AND TRADES – STATUTORY INSURANCE SCHEME FOR CLAIMS FOR DEFECTIVE OR INCOMPLETE BUILDING WORK – where Queensland Building and Construction Commission refused to allow a claim for assistance under the Queensland Home Warranty Insurance Scheme – correct interpretation of time frame to make application for assistance
Queensland Building and Construction Commission Regulation 2018 (Qld), schedule 6 s 16, s 59
Tyas v Queensland Building and Construction Commission & Anor [2025] QCAT 278 considered
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
REASONS FOR DECISION
Background
The applicant is the owner of a residential property at Kingsley Parade, Yeronga in the State of Queensland (“property”). On 31 December 2020 the applicant and the second respondent entered into a contract for renovation and extension work associated with the partial demolition and raising of the house at the property (“contract”). The value of the contract when signed was $202,058. The total value of the contract at completion of the work, including variations, was $335,543. As at December 2021, a balance of $6,112 remained unpaid by the applicant in relation to the final invoice issued by the second respondent.
On 12 April 2023 the applicant lodged a residential and commercial construction work complaint with the first respondent regarding work undertaken at the property, pursuant to the statutory Home Warranty Insurance Scheme (“Scheme”) established under the Queensland Building and Construction Commission Act1991 (Qld) (“Act”), the terms of which are set out in Schedule 6 to the Queensland Building and Construction Commission Regulation2018 (Qld) (“Regulation”). The complaint, when considered by the first respondent, referred to 24 individual work items.[1]
[1]The complaint filed included 21 complaint items. A further three complaint items were added to the complaint on 7 May 2023.
On 20 November 2023 the first respondent decided not to give a direction to rectify to the second respondent regarding the items in the complaint made by the applicant. That decision was notified to the applicant on 1 December 2023.
On 6 December 2023 the applicant requested the first respondent undertake an internal review of the decision to disallow the applicant’s claim.
On 7 February 2020 the first respondent notified the applicant that its internal review decision was to disallow the claim under the Scheme in respect of the work carried out by the second respondent.
On 6 March 2024 the applicant applied to this Tribunal for an external review of the first respondent's decision. The Tribunal's review proceeds as a fresh hearing on the merits, to produce the correct and preferable decision.[2]
[2]Queensland Civil and Administrative Tribunal Act2009 (Qld) s 20.
Insurance Scheme
Part 5 of the Act establishes the Scheme. A policy of insurance pursuant to the Scheme comes into force when a “consumer” enters into a contract for the performance of “residential construction work”.[3] I am satisfied that the applicant is a consumer within the meaning of the Act, and that the work undertaken by the second respondent pursuant to the contract is residential construction work within the meaning of the Act. I note that those matters are conceded by the first respondent in its submissions filed 4 August 2025.[4]
[3]Act ss 68H, 67WA.
[4]First respondent's submissions filed 4 August 2025 paras [22], [25].
I am also satisfied that a policy of insurance came into force in respect of the work undertaken by the second respondent pursuant to the contract, also acknowledged by the first respondent in its submissions.[5]
[5]First respondent's submissions filed 4 August 2025 paras [23], [24].
The applicant's claim filed 12 April 2023 identified 24 separate items of complaint. By his submissions filed in the Tribunal on 7 April 2025 the applicant identified that:
(a)Nine items remained outstanding, the other 15 having been attended to by the second respondent prior to 7 April 2025, or classified as either “not building work” or not comprising a defect;
(b)Of the nine outstanding items, two are structural defects (item 6 – rusting bracing, and item 10 – step treads warping or split);
(c)The remaining seven items are non-structural defects i.e. (item 5 – verandah scratched and paint marked, item 7 – weatherboard wrong side out, item 15 – front entry door scratched, item 16 – chipped bathroom tiles, item 20 – VJ gap expanding, item 22 – kitchen floor nails popping, item 23 – verandah screws uneven depth and splitting).
Structural Defects
In respect of the two outstanding structural defects, the applicant was required to make his complaint within three months of the date he became aware (or ought to have been aware) of the existence of the defects.[6] In the applicant's complaint filed 12 April 2023 the applicant identifies that he became aware of item 6 on 1 March 2022, and item 10 on 20 January 2022. In respect of both items 6 and 10, the applicant failed to make his complaint within three months of the date he became aware of the existence of the defects. Accordingly, the applicant's claim in respect of those items must be disallowed.
[6]Regulation sch 6 s 16(3)(a).
Non-structural Defects
The applicant was required to make a claim regarding non-structural defects within seven months of the work under the contract becoming “substantially complete”. The term “substantially complete” is defined in section 2 of the terms of the Scheme, to mean that at least one of the following applies in relation to the work:
(a)Final payment of the contract for the work is made;
(b)If the residential construction work is for the original construction of the residence – the residence is occupied;
(c)The built work is able to be used for its intended purpose.
The applicant, in his statement filed in the Tribunal dated 7 November 2024, contends that an invoice was issued by the second respondent on 16 January 2022 in amount $6,112. The applicant contends that sub-paragraph (a) of the definition of “substantially complete” does not apply because the final payment had not been made as at 16 January 2024. The work under the contract was not for a new dwelling, so definition (b) does not apply. The applicant further contends that sub-paragraph (c) of the definition does not apply, because the water supply and waste were not connected until 22 November 2023. The applicant contends that the work was not substantially complete until 22 November 2023.
In its submissions the first respondent concedes that the work did not become substantially complete until 22 November 2023, upon the completion of water and waste connections.[7] The first respondent also concedes that the applicant's claim for assistance in relation to the non-structural defects was made within the time prescribed by section 16 of the terms i.e. within seven months of the work becoming substantially complete.
[7]First respondent's submissions filed 4 August 2025 para [43].
Section 59 of the Scheme terms
Section 59 of the Scheme terms provides:
59 Defect in work apparent before work substantially complete
A consumer for residential construction work is not entitled to claim assistance in relation to a defect in the work if—
(a) the residential construction work is substantially complete; and
(b) the defect was apparent, or ought reasonably to have been apparent, to the consumer before the work was substantially complete.
In the present case the work was substantially complete on 22 November 2023. The applicant was aware of the various items of complaint, including the remaining non-structural defects, before 22 November 2023. Notably, and relevantly, the applicant's complaint was lodged on 12 April 2023, more than seven months before the work was substantially complete.
The first respondent submits that, in circumstances where the work was substantially complete by 22 November 2023, and the various defects were apparent to the applicant before that date, the effect of section 59 of the Scheme terms is that the applicant is not entitled to assistance.
In support of its submission, the first respondent refers to the Tribunal's decision in Tyas vQueensland Building and Construction Commission [2025] QCAT 278 (“Tyas”). The first respondent specifically quotes the reasons of Member Bertelsen at paragraph [30]:
With respect to the second leg of section 59 the Tribunal reiterates its finding that Mr and Mrs Tyas were aware of the defect as early as 21 October 2021, well before it could have been discerned that the work was substantially complete. As the defect was apparent and because both legs of section 59 need to be avoided to establish the claim, section 59 here operates to disentitle an insurance claim.
However, in Tyas:
(a)The consumers were aware of the relevant defect on 21 October 2021;[8]
(b)The works were substantially complete on 16 December 2021;[9]
(c)The relevant complaint was lodged by the consumers on 8 February 2022.[10]
[8]Tyas [24].
[9]Ibid [10].
[10]Ibid [23].
In Tyas the consumers were aware of the defects before the works were substantially complete, but did not lodge their complaint until after the works were substantially complete. That is a point of distinction with the present matter. The present applicant lodged his complaint on 12 April 2023, and the works were not substantially complete until 22 November 2023.
The first respondent's submission regarding the application of section 59 cannot be accepted. It is clear that section 59 of the Scheme terms applies to circumstances where a defect is apparent, or ought to have been apparent to a consumer, before the work is substantially complete, and the consumer fails to make a complaint before the work is substantially complete. A consumer is not entitled to “claim assistance” i.e. make a claim, where both limbs of the section are satisfied. But in the present case the claim was made before the second limb applied – the work was not substantially complete. The alternative construction, as contended for by the first respondent, would lead to the absurd result that, no matter how quickly a consumer moved to make a claim for defective residential construction work after becoming aware of it, section 59 would always apply because at some point the work would become substantially complete, notwithstanding that a claim was made, and the consumer would have been aware of the defective work prior to that point in time.
Conclusion
In the circumstances I am satisfied that the applicant's claims in relation to the seven non-structural defects were made within time and in compliance with the Scheme.
The first respondent’s decision to deny the applicant’s claim in respect of the seven outstanding non-structural defects is set aside. The matter is returned to the first respondent to deal with the applicant’s claim regarding those defects on the basis that the claim was made within time.
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