McMonagle v Queensland Building Services Authority

CITATION: McMonagle v Queensland Building Services Authority [2011] QCAT 410

PARTIES:	Mr Mark McMonagle
v
Queensland Building Services Authority

APPLICATION NUMBER:   GAR020 -11

MATTER TYPE: General administrative review matters

HEARING DATE: 25 August 2011

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Member

DELIVERED ON: 30 August 2011

DELIVERED AT: Brisbane

ORDERS MADE:      The application is dismissed and the respondent’s decision of 22 December 2010 is confirmed.

CATCHWORDS:

BUILDERS’ STATUTORY INSURANCE – where owner entered into possession and paid final payment – where retaining wall not built and pool lining and filtration equipment not installed – where builder unable to complete – where owner paid builder final payment – where owner made claim on statutory insurance – where Authority refused claim on grounds of prepayment –whether Authority entitled to refuse claim – whether contract complete – meaning of “minor omission” in standard building contract

Cordon v Lesdor [2010] NSWSC 1073

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr McMonagle in person
RESPONDENT:	Ms D Mahiepala, in-house legal officer of the Queensland Building Services Authority

REASONS FOR DECISION

1. Mr and Mrs McMonagle received the keys to their new home on 23 April 2010.  On that day, together with the builder, they completed an agreed defects list[1].  They paid the builder the final payment on 24 April 2010.

   [1]        SOR3.

2. There are 26 items on the defect list.  The builder rectified 21 items.  The builder’s licence was suspended on 24 May 2010.  It did not rectify the remaining items on the list so Mr McMonagle submitted a claim against the statutory insurance policy for rectification of those items.  The Authority has rejected the claim for two items: the pool lining and connection of the pump and filter; and the construction of the retaining wall to the southern boundary.  It did so on the basis that:

a)These two items were not “minor omissions” within the meaning of the “practical completion stage” under the building contract.

b)Because the items were not minor omissions, the works were not complete and Mr McMonagle should not have paid the final payment.

c)Because Mr McMonagle did make the final payment, he prepaid the builder within the meaning of clause 1.6(b) of the insurance policy.

1. Mr McMonagle has applied for a review of that decision.  The questions I am asked to determine are:

a)Whether the installation of the pool filter, installation of the pool lining or the construction of the retaining wall were “minor omissions” for the purpose of the definition of practical completion within the terms of the building contract.

b)Whether Mr McMonagle paid money to the builder before the money was due within the meaning of clause 1.6(b) of the insurance policy and, if so, to what extent.

Were the defects “minor omissions”?

1. The parties agree that “minor omissions” is not defined in the building contract.  The Authority also assures me that, despite an extensive search, there is no case directly on point which will assist me.

2. “Practical completion stage” is defined as:

   “…that stage of the works when…