Messaoudi v Queensland Building and Construction Commission

[2021] QCAT 124

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Messaoudi v Queensland Building and Construction Commission [2021] QCAT 124

PARTIES:

MOHAMED MESSAOUDI  
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR212-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 April 2021

HEARING DATE:

18 March 2021

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

The Tribunal confirms the decision of the Queensland Building and Construction Commission dated 26 May 2020 to disallow a claim under the Queensland Home Warranty Scheme.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where applicant sought review of decision by Commission to disallow claim under the Queensland Home Warranty Insurance Scheme – where Commission’s expert found structural defects –- where applicant failed to adduce independent expert evidence – where claim out of time - where Commission’s decision confirmed

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 7, s 28

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Birrell v Queensland Building Services Authority [2013] QCAT 56
Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323
Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115
Jackson & Ors v Queensland Building and Construction Commission [2018] QCAT 290
Laidlaw v Queensland Building Services Authority [2010] QCAT 70
Orlanski v Queensland Building Services Authority [2011] QCAT 35
R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228
Walker v Queensland Building and Construction Commission [2014] QCAT 228
Walker v Queensland Building and Construction Commission [2021] QCAT 32
Young v Queensland Building Services Authority [2014] QCAT 75

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

N Whelan, In-house Lawyer

REASONS FOR DECISION

1. Mohamed Messaoudi applied to review a decision by the Queensland Building and Construction Commission on 26 May 2020 to disallow his claim under the Queensland Home Warranty Insurance Scheme because it was out of time.  Mr Messaoudi must claim within three months of a ‘category 1’ defect becoming evident, or seven months from practical completion for a ‘category 2’ defect.[1] 

   [1]Insurance Policy Conditions, Edition 8, effective 1 July 2009, Part 4.4.

2. Mr Messaoudi made his insurance claim because the builder did not comply with a Direction to rectify items 1 and 5[2] of Mr Messaoudi’s initial complaint made to the Commission on 17 January 2020:

   Item 1Boards expansion, pushing against the house and stopping the sliding door to open correctly first noticed on 15 April 2019

   Item 5The deck movement also creating tilting of pool fence preventing the gate from closing properly first noticed on 22 May 2019

   [2]Direction To Rectify dated 24 March 2020. Mr Messaoudi did not apply to review the Direction to rectify.

3. Mr Messaoudi submitted that the Commission Inspector’s classification of the items as ‘category 1’ could not have been evident and apparent to Mr Messaoudi at any time prior to the inspection on 17 March 2020 and he also questioned the structural nature of the defects.

4. The definitions of ‘category 1’ and ‘category 2’ defects focus on the impact of a defect. ‘Category 1’ defects are more serious and focus on structural integrity, function and safety. While the classification of a defect is relevant to the time limit, its apparency to Mr Messaoudi is not. Mr Messaoudi’s knowledge of the classification of a defect is not relevant to the time limit.[3]  

   [3]Jackson & Ors v Queensland Building and Construction Commission [2018] QCAT 290, [30].

5. The Commission’s inspector evaluated the items and found they were structural.[4] The inspector is a licensed builder with significant building and construction industry experience. Although the inspector is employed by the Commission who is also a party to the application, the Commission’s statutory role is simply to administer the Act and further its objects.[5] Those objects include ensuring the maintenance of proper standards in the industry, achieving a reasonable balance between the interests of building contractors and consumers and providing remedies for defective building work.[6] The inspector’s report is prepared in furtherance of those objects, rather than any vested interest.

   [4]Inspection Report dated 23 March 2020.

   [5]Queensland Building and Construction Commission Act 1991 (Qld), s 7.

   [6]Queensland Building and Construction Commission Act 1991 (Qld), s 3.

6. Mr Messaoudi did not provide any independent expert evidence to contradict the inspector’s opinion on the defect being structural. In conducting a proceeding, the Tribunal must act fairly and according to the substantial merits of the case.[7] It is not bound by the rules of evidence and may inform itself in any manner it considers appropriate.[8] That does not mean, however, that the rules of evidence are to be ignored.[9] Mr Messaoudi did not possess specialised knowledge or independence and provided no expert evidence.

   [7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).

   [8]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b), (c).

   [9]R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228, 256 (Evatt J).

7. In review proceedings, Mr Messaoudi has an evidential onus to provide appropriate material to support the decision he seeks.[10] This has also been described as a ‘practical onus’.[11] Mr  Messaoudi did not provide any independent expert evidence of his own. The Tribunal cannot make findings of fact where the evidence is insufficient – parties must take responsibility to prepare their own case.[12] Without independent expert evidence to the contrary, the Tribunal is not satisfied to adjust the inspector’s findings.[13]

   [10]Walker v Queensland Building and Construction Commission [2014] QCAT 228, [23] citing with approval Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [23].

   [11]Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115, [33].

   [12]Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323, [3].

   [13]Birrell v Queensland Building Services Authority [2013] QCAT 56, [37]; Young v Queensland Building Services Authority [2014] QCAT 75, [44].

8. Mr Messaoudi also submitted that at no point did the Commission advise him that the insurance might not cover rectification if the builder did not comply with the Direction to rectify. However, this does not explain the delay between him first becoming aware of the defects in April and May 2019 and his first telephone call to the Commission on 30 October 2019. His first contact with the Commission was still outside the timeframe.  

9. Mr Messoudi’s insurance claim was already out of time before the Commission became involved. Any advice by the Commission would have been otiose. The Commission did not formally become involved until after this, when he made his initial complaint on 17 January 2020.[14] Moreover, the Tribunal does not have a discretion to extend time.[15]

   [14]A complaint is not made until the Commission receives it in writing: Queensland Building and Construction Commission Act 1991 (Qld), s 71C; Terms of Cover, s 65.

   [15]Terms of Cover, s 16; Orlanski v Queensland Building Services Authority [2011] QCAT 35, [38]. Walker v Queensland Building and Construction Commission [2021] QCAT 32.

10. In a review application, the Tribunal’s purpose is to produce the ‘correct and preferable’ decision by way of a fresh hearing on the merits.[16] The Tribunal may 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 appropriate directions.[17]

    [16]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.

    [17]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.

11. Because Mr Messaoudi did not claim within time for a ‘category 1’ defect, the correct and preferable decision is that the Tribunal confirms the decision of the Queensland Building and Construction Commission dated 26 May 2020 to disallow the claim under the statutory insurance scheme.