Orlanski v Queensland Building Services Authority - [2011] QCAT 35

CITATION:

Orlanski v Queensland Building Services Authority [2011] QCAT 35

PARTIES:	Grace Orlanski
v
Queensland Building Services Authority

APPLICATION NUMBER:

QR260-08

MATTER TYPE:

Building matters

HEARING DATE:

10 January 2011

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DELIVERED ON:

27 January 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

That the decision of the Queensland Building Services Authority dated 22 October 2008 is set aside;
That the time for the applicant to lodge a claim regarding the waterproofing failure in the ensuite bathroom is extended under clause 2.5 of the Insurance Policy Conditions Edition 5 to 3 October 2008;
That the claim dated 3 October 2008 is accepted in the sum of $3,016.00;
That the applicant provide to the Tribunal and serve on the respondent her submissions in relation to costs by 11 February 2011;
That the respondent provide to the Tribunal and serve on the applicant its submissions in response by 25 February 2011;
That the application for costs be heard on the papers not before 28 February 2011.

CATCHWORDS :

Review of decision of Queensland Building Services Authority to disallow a claim under the statutory insurance scheme - where a claim was made within required time frames - where another claim subsequently made outside of time frames - meaning of ‘became evident’ in policy - Queensland Building Services Authority Act 1991 - section 70

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Applicant
RESPONDENT:	Ms Cheridan Farthing, legal officer, Queensland Building Services Authority

REASONS FOR DECISION

History of Application

1.    By application filed in the Commercial and Consumer Tribunal on 17 November 2008, the applicant sought a review of the decision of the Queensland Building Services Authority (QBSA) dated 22 October 2008 which in effect disallowed a claim under the statutory insurance scheme, together with her legal costs and reimbursement of her filing fee.
2.    The claim or complaint which was disallowed had been lodged with the QBSA on 3 October 2008 (the second claim) and related to water damage to the ensuite shower recess of premises owned by the applicant. An earlier claim or complaint (the original claim) had been lodged by the applicant on 17 March 2008 for items including water damage to the shower recess in the main bathroom and as a consequence to the kitchen. The failure which resulted in the damage in the main bathroom and the kitchen ceiling below it, was allowed on the original claim under the statutory insurance scheme.
3.    It is not controversial that the relevant statutory insurance period for the premises concerned extended from 24 September 2001 to 24 March 2008.
4.    From 1 December 2009, the Commercial and Consumer Tribunal (the former tribunal) ceased to exist and the Queensland Civil and Administrative Tribunal (QCAT) became responsible for dealing with the proceeding.

Law and Policy

5. Part 5 of the Queensland Building Services Authority Act 2001 (the Act) establishes the statutory insurance scheme administered by the QBSA.
6. Under section 69(2) a policy of insurance comes into force in the…

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: [2011] QCAT 35
Decision Date: 27 January 2011

CaseChat Overview and Summary

The applicant, Mr. Orlanski, sought review of a decision by the Queensland Building Services Authority (QBSA) to disallow a claim under the statutory insurance scheme. The dispute centred on whether Mr. Orlanski's claim regarding a waterproofing failure in the ensuite bathroom of his property was made within the requisite timeframes as stipulated by the Queensland Building Services Authority Act 1991 and the policy conditions.

The primary legal issues before the court were the interpretation of the term ‘became evident’ within the insurance policy, and whether Mr. Orlanski's claim was timely under the statutory provisions and policy conditions. Specifically, the court had to determine if Mr. Orlanski's claim, made on 3 October 2008, was within the allowable timeframe considering the date on which the defect became evident and the subsequent claim he made outside the prescribed period.

The court found that the term ‘became evident’ in the policy was intended to mean the point at which a reasonable person would have discovered the defect, not necessarily when the defect was first present. Given that Mr. Orlanski had lodged his initial claim within the required timeframe and the subsequent delay was not due to any fault on his part, the court concluded that the QBSA's decision to disallow the claim was unjust. Consequently, the court set aside the QBSA's decision, extended the claim period, and accepted the claim in the amount of $3,016.00.

The final orders included setting aside the QBSA's decision, extending the claim period, accepting the claim, and scheduling submissions on costs between the parties. The court mandated that the applicant submit her cost submissions by 11 February 2011, with the respondent to respond by 25 February 2011, and the costs application to be heard by 28 February 2011.

Orders

Orders of the court

1. That the decision of the Queensland Building Services Authority dated 22 October 2008 is set aside;

2. That the time for the applicant to lodge a claim regarding the waterproofing failure in the ensuite bathroom is extended under clause 2.5 of the Insurance Policy Conditions Edition 5 to 3 October 2008;

3. That the claim dated 3 October 2008 is accepted in the sum of $3,016.00;

4. That the applicant provide to the Tribunal and serve on the respondent her submissions in relation to costs by 11 February 2011;

5. That the respondent provide to the Tribunal and serve on the applicant its submissions in response by 25 February 2011;

6. That the application for costs be heard on the papers not before 28 February 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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