O'Brien v Queensland Building Services Authority
[2013] QCAT 542
| CITATION: | O’Brien v Queensland Building Services Authority [2013] QCAT 542 |
| PARTIES: | Gerard O’Brien and Susan O’Brien (Applicants) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR365-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 12 June 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michael Howe, Member |
| DELIVERED ON: | 11 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1 The decision of the Authority made 26 September 2012 is set aside. 2 The Applicants’ claim under the statutory insurance scheme be accepted in respect of items 1, 2, 3, 4, 5 and 7 of the complaint lodged 9 November 2011. |
| CATCHWORDS: | REVIEW - Review of decision of the Authority – decision to refuse a claim under the statutory insurance scheme out of time - - exercise of discretion – explanation for delay – prejudice to the Authority – loss of opportunity to issue direction to rectify – actual as opposed to theoretical loss of opportunity – estoppel of the Authority – election by the Authority – construction of documents – costs Queensland Building Services Authority Act 1991 ss 9A(1), 26A, 72 Holmes v QBSA [2010] QCAT 197 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Mr S Hogg of Counsel, instructed by John Drakos, Solicitors
RESPONDENT: Mr S Formby of Counsel, instructed by Holding Redlich, Solicitors
REASONS FOR DECISION
Background
In March 2008 Mr and Mrs O'Brien contracted with Preferred Builders Pty Ltd to build them a home at Manly.
A certificate of insurance issued pursuant to the statutory home warranty scheme. Practical completion occurred on 18 October 2009.
Generally, the owners and Mr Steenland, the builder director behind Preferred Builders Pty Ltd, had a good relationship and when Mr and Mrs O'Brien pointed out various defects after completion they were remedied fairly quickly. Mr Steenland returned three or four times to do remedial work. The second time they had to wait some 10 weeks before someone came out, but the work was done.
In December 2010 Mr and Mrs O'Brien noticed tiles lifting and water damage to one of the decks. Then in January 2011 water leaks became evident in the garage and in the house. Before that, in 2009, some minor cracks had been noticed in the ceiling in the study area and some cracking on rendered pillars on the pool deck.
In December 2010 and January 2011 there was very heavy rain in Southeast Queensland. The house developed water leaks. Mr Steenland was contacted and he came out around mid-January 2011, but the rain had stopped by then. He couldn't locate the water leak he said. He told Mr O'Brien that the water leak could be easily repaired. He said he come back when there was another heavy downpour.
After speaking to Mr Steenland, Mr O'Brien believed the leak was not serious and he did not believe there was any reason to notify the Queensland Building Services Authority.
Mr Steenland and another builder did return mid-February 2011 for another inspection. Again Mr Steenland said he couldn't do much to fix the problem unless it rained whilst he was there. According to Mr O'Brien there was no heavy rain for some time after that.
In April 2011 Mr Steenland came back again, unannounced, for yet another inspection. Mr Steenland said he was very busy and when he had a break with his work, probably sometime in June or July 2011, he would come back and fix the both decks and the water damaged media room.
Sometime in July 2011 Mr O'Brien drove past the builder's office and he noticed a "For Sale" sign in the window. Seeing that, he telephoned Mr Steenland but could not contact him.
Given the problems contacting the builder Mr O'Brien spoke to a neighbour, another builder, and the neighbour told him Preferred Builders Pty Ltd "had gone broke". In fact liquidators were appointed on 16 August 2011.
Around that time the builder neighbour inspected Mr and Mrs O'Brien's house and in result he told them to contact the Authority. He said the problem in the media room was very serious. According to Mr O'Brien, it was only then that he and his wife realised the extent of the damage to their home.
Mr and Mrs O'Brien run a heavy plant hire business. That business suffered enormously in the 2011 floods. Much of Mr O'Brien's time and that of Mrs O'Brien in early 2011 was taken up trying to save the business. They claimed on business insurance in respect of the loss to their business. It was a very trying time for them, both financially and emotionally.
A complaint was lodged with the Authority on 9 November, 2011. On 23 January 2012 an inspector from the Authority inspected the house. On 15 February 2012 an engineer engaged by the Authority also carried out an inspection. The engineer returned for a second inspection on 7 March 2012.
The engineer prepared a report on 10 April 2012. On 16 May 2012 a plumber engaged by the Authority carried out an inspection and he prepared a report. On 18 May 2012 the initial inspector from the Authority prepared an inspection report identifying category 1 and category 2 defects at the property.
By letter dated 4 June 2012 the Authority wrote to Mr O'Brien and informed him the Authority would not accept the category 2 defects as an insurance claim because they were out of time, one item was not a defect able to be claimed under the insurance, but the remaining items, 6 in all, were.
On 17 August 2012 the Authority advised Mr O'Brien that the quotes it had obtained to rectify the category 1 defects were considered excessive and unacceptable and the Authority proposed obtaining further quotes.
Then on 26 September, 2012 the Authority wrote to Mr O'Brien advising that given the complaint had not been lodged until 9 November 2011, approximately 11 months after the date on which the defects first became evident, the claim (the complaint) had been made out of time. The builder had gone into liquidation on 16 August, 2011 and if the claim had been made earlier the Authority could have intervened and issued a direction to rectify. The Authority had been prejudiced in not being able to issue such a direction and in not being able to recover the costs of rectification from the builder. For those reasons the Authority now declined the O’Brien’s claim under the statutory insurance scheme.
On 25 October 2012 Mr and Mrs O’Brien filed this application seeking review of the decision to refuse their claim.
The Issue
It is clear the insurance claim was made out of time. That is not in dispute. Clause 2.5 of the relevant insurance Policy[1] provides:
"The Insured is NOT ENTITLED to payment for loss under this Part unless:
(a) in the case of a category 1 defect, the claim is made within three months of that defect first becoming evident (in the opinion of BSA); or
(b) in the case of a category 2 defect, the claim is made within seven months of the date of practical completion,
or within such further time as BSA may allow.”
[1]Statutory Insurance Policy Conditions Edition 7 (effective 29 September 2006)(“the Policy”).
The issue is whether or not, in the circumstances, the discretion to allow the claim despite being lodged out of time should have been exercised in favour of the owners.
The Discretion
According to Counsel for the Authority, what is required in an appropriate exercise of the discretion is first to ask the question, has a reasonable excuse for the failure to claim within time been given? If it has, then one must consider any prejudice to the Authority caused by that delay which should preclude exercise of the discretion in favour of the owners.
The Policy is a statutory instrument created pursuant to subordinate legislation[2]. Accordingly in interpreting the statutory instrument it is appropriate to consider the purpose and object of the empowering legislation, namely the QBSA Act [3].
[2]Queensland Building Services Authority Act 1991 (“QBSA Act”) ss 9A(1) and 7, 9. Statutory Instruments Act 1992.
[3] Acts Interpretation Act 1954 s 14A(1); Holmes v QBSA [2010] QCAT 197.
In any case, the discretion under the Policy is at large and accordingly “(t)he general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute.”[4]
[4]R v Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd [1979] HCA 62 at [13]; Swan Hill Shire v Bradbury (1937) 56 CLR 746.
By s 3 of the QBSA Act, the objects of the legislation include, amongst other things, regulation of the building industry to achieve a reasonable balance between the interests of building contractors and consumers and to provide remedies for defective building work.
These factors must be considered when exercising the discretion granted the Authority under consideration.
There must be a commercial consideration brought to bear in running the scheme[5], but the appropriate exercise of discretion will require more than that. It will require a balancing between commercial considerations and the stated objects and purposes of the legislation. That will include an acknowledgment that the scheme exists as a safety net for consumers. In practical terms this will generally mean an exercise of the discretion in favour of claimants where after the circumstances of delay and the conduct of the claimants outweighs any corresponding disadvantage to the Authority caused by a claim out of time.
[5] QBSA Act s 26A.
As stated, it is a matter of balance. As pointed out in Rezaee and Anor v QBSA[6], it is instructive in considering the exercise of discretion in a case like this to consider the similar discretion to extend time under rules of court where, say, a party applies for an extension of time to file an appeal. His Honour Justice McHugh said in Gallo v Dawson: “The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties.”[7]
[6] [2012] QCATA 147 at [34].
[7] [1990] HCA 30 at [2].
Delay
There must be an explanation for delay in making the claim. If there is not, there is no reason why the set time limits should not apply[8].
[8] Mansoor and Rezaee v QBSA [2011] QCAT 53.
The Authority says Mr and Mrs O'Brien became aware of the category 1 defects in January 2011. Accordingly they should have made a complaint to the Authority by April 2011. However the complaint was not made until 9 November 2011. They are therefore some 7 months out of time.
The Authority maintains they have failed to account for the delay.
They haven't explained why they didn't lodge a complaint in late July 2011 when they noticed the builder had closed its office. They haven't explained why they didn't lodge a complaint in August 2011 when they were informed by their neighbour that the builder had gone “broke”. They haven't provided any adequate explanation for the further delay after that from August 2011 to 9 November 2011, when they finally did lodge a claim.
According to Mr and Mrs O'Brien, they have indeed offered an explanation. They say they had a good relationship with the builder. After completion, when they complained of defects, he returned and fixed them. When the serious defects the subject of the insurance claim came to their attention they again contacted the builder and asked him to fix those problems in the same way.
He came out to the property on a couple of occasions and agreed to do the rectification work. He left Mr O'Brien with the impression the water leaks were not serious, and they therefore thought there was no reason to notify the Authority. The builder took his time, but that was in line with his past behaviour in fixing previous problems.
Mrs O'Brien gave evidence that 2011 was an extremely difficult year for her and her husband. There was of course the financial stress associated with their flood affected business. They were under extreme financial pressure and she was forced to devote much of her time to the book work in the business. She had to work more than 50 hours a week in the business and at the same time try to look after her family.
They had marital problems. She became depressed. She felt guilty that she was neglecting her family. She felt overwhelmed and the issue concerning the house was not to the forefront of her mind she admits.
Mr O'Brien was no good with book work. Mrs O'Brien had to attend to all the paperwork including the paperwork associated with the complaint to the Authority.
They employed a new operations manager and he had a personal crisis and brought those problems to the workplace. He slept at their business premises. Mrs O'Brien had to shoulder some of the operations manager’s workload, particularly more paperwork. This continued until about November 2012.
She was the one that finally prepared the claim and lodged it. It took time to prepare and probably took her a couple of weeks to put together.
The Authority says, in effect, the owners turned to the builder rather than the Authority to remedy the defective work. That was an election on their part not to seek assistance from the statutory insurance scheme.
Furthermore, they were able to organize a claim on the business insurance, why not the building insurance? But Mrs O’Brien points out she had the assistance of a broker to claim under the business insurance. The broker completed most of the forms necessary for that claim.
The Authority says by July 2011, when the owners couldn’t contact the builder by telephone, any reasonable person should have realized there was a problem with the builder. After that, even if one accepts the delay to July was reasonable, after they were told in August 2011 that the builder was insolvent, there was no excuse not to notify the Authority.
I had the benefit of hearing and seeing the owners give evidence. I accept they gave honest evidence. I accept that the early 2011 Brisbane flood had a dire effect on their business and that that more than anything else created an ongoing and highly stressful work and home environment for them for most of that year, particularly in the first half. I conclude that at least until late July or early August 2011, they believed the builder would return and rectify the problems. I accept Mrs O’Brien took responsibility for lodging the claim with the Authority and I conclude she had ongoing significant, even overwhelming, work and personal problems which contributed to her delay in not doing that until November 2011.
I accept the owners have explained their delay, and I might note there have been a number of decisions in the Tribunal where reliance on a builder to return and rectify defects has been accepted as reasonable explanation for delay[9].
[9] Holmes op cit; Vandenhoven v QBSA [2011] QCAT 673.
But adequate reasons for delay is not by itself determinative of the issue as to whether the discretion to accept a claim out of time should be exercised in favour of such claimants. Whilst there may be an honest reason for delay, the next question is, has that delay unfairly prejudiced the Authority? Has that delay prejudiced the Authority to the extent that the discretion to extend time should not be exercised in favour of the owners despite the explanation for delay?
Prejudice
Mr Formby for the Authority says there has been prejudice to the Authority here. It was the loss of opportunity to issue directions to rectify to the builder. The claim should have been made no later than the beginning of April 2011. The builder went into liquidation on 16 August 2011.
In Murphy v QBSA[10], a decision of the former Queensland Building Tribunal, the Tribunal concluded a direction from the Authority to the contractor to rectify defective building work would have had little prospect of success. The Tribunal concluded the builder ignored the owner and more likely than not the builder would have ignored any direction to rectify.
[10] [1996] QBT 207.
Mr Formby says that that decision was wrong. The issue of opportunity to rectify has been confused with the issue as to whether or not the builder would have complied with a direction. The prejudice to the Authority is the loss of opportunity. It is just speculation to consider whether the builder would or would not have complied with a direction.
One major difficulty I have with that reasoning is that the entire argument of the Authority as to lost opportunity to issue a direction to rectify is itself entirely speculative.
Mr Hogg for the owners says when one talks of prejudice to the Authority it must be a real and actual prejudice. To that end he submits one must consider the reality of what the Authority would have done if the claim had been made in time.
Mr Sparks, an officer with the Authority, assessed the claim after it was lodged. It was put to him that the following would be a fairly typical time line for most claims. First it would take a couple of weeks to assess it after receipt. Then there would be approximately four weeks with inspections. That inspection period was fairly nebulous, and depending on the complexity of the rectification work, and whether other experts had to be called in to report, there could be additional weeks of delay. After that, once a report was to hand, if a direction to rectify was given that would make another four weeks for a compliance period. He agreed that that might be a fair time line in many cases.
According to Mr Hogg, applying such a timeline here, even if Mr and Mrs O’Brien had lodged a claim within time, the reality is that the builder would have gone into liquidation within 4 to 6 weeks after expiry of any direction to rectify given to it. He says it would have been highly unlikely that the builder would have complied with any such direction to rectify.
In fact however, Mr Sparks agreed that in this particular case it took approximately six months from the date of lodgement of the claim to completion of the inspection reports. In my opinion, that is the decisive factor in this matter.
I cannot see why this long investigative period would have been any less had the claim been made in April 2011 rather than in November 2011. As such, the builder would in any case have been in liquidation before any direction to rectify could have been given to it.
Additionally, there was evidence from a Mr Matheson. He had also engaged Preferred Builders Pty Ltd to build him a home, and he had experienced water damage problems too. He had made a claim on the statutory insurance within time however, around January 2011. Of significance is his statement[11] that the Authority issued a direction to rectify to the builder and an inspector from the Authority had informed him that “Steenland refused to undertake the rectification work….” This evidence was not challenged by the Authority.
[11] Ex 8 para 16.
I think it is therefore reasonable to assume that the Authority did in fact issue a direction to rectify to either Preferred Builders Pty Ltd or Mr Steenland or both of them with respect to the defects associated with Mr Matheson’s house. Had the builder complied with those directions to rectify, I have no doubt that evidence about that success would have been led in this matter to establish more than a theoretical loss of opportunity to issue the same directions here. It wasn’t.
If no such directions to rectify were given in relation to Mr Matheson’s property, accepting his claim was lodged in or about January 2011, the force of the Authority’s complaint as to loss of opportunity in the case of the O’Brien’s loses all credibility.
That no evidence has been led by the Authority about this when one might have legitimately expected something leads me to draw an adverse inference from that failure[12]. Mr Matheson’s affidavit was filed (and I assume served) well before hearing. I would have expected some evidence about or challenge to Mr Matheson’s claim.
[12] Jones v Dunkel [1959[ HCA 8.
Accordingly I conclude Mr Hogg has the right of it. To my mind, there must be actual and real as opposed to fanciful or illusory loss of opportunity to the Authority for that to amount to prejudice sufficient to weigh the exercise of discretion to extend time against the owners.
The Authority would have been in the same position it found itself with the claim filed in November 2011 as it would if the claim had been filed in time. Preferred Builders Pty Ltd would in any case have been in liquidation before any direction to rectify could have been given.
Direction to Rectify to the Director
It is further submitted however that the failure of the owners to lodge a claim earlier than November 2011 was prejudicial to the Authority in so far as the Authority’s opportunity to issue a direction to rectify to Mr Steenland as director of Preferred Builders Pty Ltd[13] was stymied. Mr Steenland went bankrupt on14 February 2012.
[13] QBSA Act s 72(5).
I note this assertion is not mentioned in any of the file notes exhibited to the Statement of Reasons. Nor was it a ground set out in the letter of 26 September 2012 rejecting exercise of the discretion to extend time. Mr Sparks makes no mention of it in his affidavit explaining the basis of his decision[14].
[14] Ex 11 at [54].
The reason for that is probably because it was not really considered a serious proposition at the time. An examination of the Liquidator’s statement of the assets of Preferred Builders Pty Ltd (in liquidation) shows unsecured creditors were owed $566,036.40, the Deputy Commissioner of Taxation was owed $323,000 and there were unpaid employee wages of $35,639.88[15]. After payment of the costs of winding up, there were no funds available to creditors.
[15] Ex 3 pp132 and 149.
Mr O’Shannessy of the Authority estimated the cost of rectification of Mr and Mrs O’Brien’s home was $175,355.85. Other estimates were obtained which ranged above and below that figure. The rectification work required is substantial.
Whilst there is no specific evidence concerning the financial affairs of Mr Steenland in the two or three months before his bankruptcy in February 2012, on balance I conclude the likelihood of issuing a direction to rectify to him after or in lieu of issuing a direction to his company upon which he would act was virtually nil.
It is a reasonable assumption that he had no workforce available to assist him in performing any rectification work. Nor would he have had any assets to supply materials. As such in my opinion there was never any real prospect of him complying with any direction from the Authority. Any loss of opportunity so asserted is entirely theoretical and fanciful.
In end result I cannot conclude there has been real prejudice to the Authority caused by the claim by the owners made out of time. Accordingly the discretion to accept their claim should be exercised in their favour.
Estoppel and Election
Though my conclusion above determines the outcome of this application, it is appropriate that I also consider the other bases of claim in this matter, estoppel and election.
From the outset I think it appropriate to reiterate the comments of Justice Gummow in Re Minister of Immigration v Kurtovic[16] that the principles governing estoppel and related doctrines have evolved principally in the context of private law disputes. Difficult issues arise concerning the extent to which such principles apply in administrative law[17].
[16] [1990] FCA 22.
[17] Ibid at [12].
After the owners lodged their claim in November 2011, Mr Sparks investigated the matter for the Authority. On 4 June 2012 he wrote to Mr and Mrs O’Brien saying: “I have assessed your claim and advise that you are eligible for insurance assistance….’ Then the letter sets out clause 2.5 of the Policy in full and one item of complaint is identified as not being a defect. The letter continues that the remaining items “…have been accepted for a claim ….A copy of the Scope of Work and other relevant documentation, if any, are enclosed for your consideration. The Scope of Work is BSA’s assessment of the extent of work required to address the residential construction work items detailed in your complaint that have been accepted for an insurance claim. BSA will notify you in writing upon approval of a claim….You must not proceed with the work until your claim is approved….”
This letter is different in a number of critical respects to that the subject of dispute in Vandenhoven v QBSA. In that case there was no rider about any notification in writing upon approval of the claim. Additionally, in that case the Authority advised the owner of his right of Tribunal review of the decision about scope of works to be undertaken.
Reverting to the correspondence in this matter before me, by a further letter dated 17 August 2012 the Authority advised that quotations obtained for the cost of rectification were considered excessive and further quotes were being sought.
According to Mr Hogg, these letters amounted to representations to the owners by the Authority that the Authority had accepted their claim and intended to pay under the insurance once an acceptable quotation was obtained. This representation, says Mr Hogg, created an estoppel against the Authority subsequently asserting to the contrary in the letter of 26 September 2012.
I cannot agree given my reading of the correspondence in question.
To me, the first letter of 4 June 2012 is contradictory and ambiguous. It really poses more questions than offers explanations to a reader. The initial sentence cited suggests the claim has been assessed and the owners are eligible to claim on the insurance. Then there is the statement about the Scope of Work and the “items detailed in your complaint that have been accepted for an insurance claim.” But then the penultimate paragraph clearly refers to yet further approval – “BSA will notify you in writing upon approval of a claim….You must not proceed with the work until your claim is approved….”
I cannot see how it can be concluded on an impartial reading of the letter of 4 June 2012 that the correspondence amounts to a clear unequivocal representation that the owners’ claim under the Policy has been finally approved.
The letter of 17 August 2012 adds no weight to the argument that an estoppel has arisen based on the letters. In fact it gives weight to the contrary view given the statement “…as previously advised, BSA will notify you in writing upon approval of a claim. You must not proceed with the work until your claim is approved….”
Counsel hasn’t finished however. He proposes additionally or alternatively that the Authority should be held to an election they made prior to 4 June 2012 to accept the owners’ claim which election is evidenced by a file note created by Mr Sparks on 31 May 2012.
The file note says this: “Regardless of the owners trying to do the right thing by the builder, the BSA has still been prejudiced by not being able to direct and/or recover as the complaint form came in 10 months (approx.) after the defect first came to light. In saying this, the owners were of the impression that the builder was to rectify and had a good working relationship with them and had no reason to think otherwise.
In reviewing all the information at hand, that it was documented in writing to the builder, and that they were given the impression that rectification would be occurring, it would be unreasonable not to accept a claim based on timeframes of when the defect was first noticed. The BSA had not been prejudiced in being able to recover if the timeframe of when the owners were aware that the builders were no longer coming back to site is taken into account.
For these reasons a claim is to be approved for the following defect items ….”
To my mind that note does not record a decision made in exercise of the discretion under review. The words in the last paragraph “…is to be approved…” suggests to me the actual exercise of discretion, the actual decision, the formal decision, remained extant as at that date.
In any case however, even if the file note records an exercise of the discretion under the Policy, the letter of 4 June 2012, ambiguous and unclear as it is, may be interpreted as evidence of resiling from any such exercise of discretion.
By s 24AA of the Acts Interpretation Act 1954:
“If an Act authorises or requires the making of an instrument or decision—
(a) the power includes power to amend or repeal the instrument or decision; and
(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.”
By s 7 of the Acts Interpretation Act 1954, a reference to an Act includes reference to statutory instruments. Accordingly a decision maker exercising a discretion under the Policy is entitled to the benefit of s 24AA powers in the absence of express provision to revoke or amend decisions in the enabling legislation.
There is a dearth of case law on s24AA, but in my opinion the words of that provision are clear. The provision has been described as having a wide operation by Dame Enid Campbell in her authoritative paper on revocation of administrative decisions[18].
[18]Revocation and Variation of Administrative decisions, Monash University Law Review, Vol 22, No.1, 1996 p63.
In a sense s 24AA clarifies and strengthens a common law position on the capacity to revoke or amend an administrative decision. In Re Minister of Immigration v Kurtovic[19], Gummow J said the statement by Denning J (as he then was) in Robertson v Minister of Pensions[20] that the doctrine of estoppel not binding the Crown has been exploded was too widely expressed. Certainly in so far as the exercise of statutory discretion and performance of statutory duty is concerned. Gummow J said at [31]: “As I see it, if the decision maker were estopped from resiling from a single exercise of his discretion, then the nature of the discretionary power (being exercisable from time to time) would be stifled.”
[19] [1990] FCA 22 at [31] per Gummow J.
[20] (1949) 1 KB 227 at 231.
Generally I have difficulty with concepts of estoppel and election applying to administrative decisions in Queensland given s24AA. The only circumstances where I would probably see a possibility of any such doctrine applying would be where a decision is made and acted on or “perfected” by the decision maker. Accordingly there would be no revocation or amendment possible because the exercise of discretion has ended or been used up.
But here I conclude there was no election of the Authority to accept the owners’ claim by any decision made on 31 May 2012, and had there been the Authority was entitled to resile from same pursuant to s24AA of the Acts Interpretation Act 1954, and did.
Conclusion
The owners have explained their delay in claiming under the statutory insurance scheme. The delay has not prejudiced the Authority to the extent the discretion to accept the claim out of time should not be exercised in their favour. The decision of the Authority under review made 26 September 2012 should be set aside and substitute therewith a decision to accept the claim of the owners made on 9 November 2011 as appropriately made as to items of complaint 1, 2, 3, 4, 5 and 7 pursuant to the statutory insurance scheme.
Costs
The owners seek costs. The Authority has made no claim for costs. In my opinion the usual rule of the Tribunal on costs should apply, namely that both parties bear their own costs[21].
[21] QCAT Act s 100.
The owners have been successful on one of the three grounds relied on, but not the other two. In considering the factors listed in s102(3) of the QCAT Act I cannot conclude, on balance, that the conduct of the Authority in the proceedings disadvantaged their opponents. Given the conflicting decisions on the issue at the heart of this matter, namely exercise of a discretion, I do not consider the Authority took a cavalier or careless approach when making the initial decision to enforce the nominated time limits set under the Policy, nor in opposing the application for review.
Perhaps there is an element of carelessness involved in relying on precedent letters such as the correspondence of 4 June 2012 when the interpretation relied on by the Authority has already been questioned by the Tribunal[22]. There is also the peculiar position of the Authority having the associated matter of Mr Matheson’s claim available when making its final decision. But at the end of the day, it was a matter of exercising a discretion, and that required a matter of assessing conflicting factors. It is not a simple task.
[22] Vandenhoven.
As stated, the parties should bear their own costs.
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