Perry v Queensland Building and Construction Commission - [2022] QCAT 234

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Perry v Queensland Building and Construction Commission [2022] QCAT 234

PARTIES:

ERROL ROBERT MORTIMER PERRY

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR039-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

20 June 2022

HEARING TYPE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

The Application for miscellaneous matters filed on 7 October 2021 is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – applicant engaged contractor to perform roofing work – roofing work found to be defective – applicant made claim under Statutory Insurance Scheme – Queensland Building and Construction Commission rejected the claim in reliance on s 61 of the Terms of Cover – applicant applied to the Tribunal to review decision to disallow claim – applicant subsequently engaged a contractor to carry out rectification work – the Commission asserted that rectification work was done without prior written approval and this also precluded the claim by virtue of s 64 of the Terms of Cover – Commission applies to dismiss review application under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether s 64 applies to rectification work done after making of decision to refuse applicant’s claim – whether Commission has shown that the review application is misconceived or lacking in substance

Queensland Building and Construction Commission Act 1991 (Qld), s 67WB, s 67X, s 72, s 87

Queensland Building and Construction Commission Regulation 2018 (Qld), s 58, s 61, s 64, s 67, s 68, s 69, s 70 of Schedule 6
Queensland Civil and Administrative Tribunal Act2009 (Qld), s 47

Auret v Queensland Building Services Authority & Anor [2013] QCAT 623
Cronin v Queensland Building and Construction Commission [2019] QCAT 14

Simons & Ors v Dowd Lawyers Pty Ltd [2020] QCAT 348
University of the Sunshine Coast v Hickson-Jamieson [2022] QCATA 54

Walker v Queensland Building and Construction Commission [2021] QCAT 32

REPRESENTATION:

Applicant: Self-represented

Respondent: Norton Rose Fulbright Australia

APPEARANCES:

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

Introduction

This is an Application for miscellaneous matters filed on 7 October 2021 (the Dismissal Application) by the Queensland Building and Construction Commission (the QBCC). The QBCC is the respondent to an Application to review a decision filed on 5 February 2020 (the Review Application) by Errol Perry (Mr Perry) as applicant.
By the Review Application, Mr Perry seeks to review a decision by the QBCC dated 13 January 2020 (the Review Decision) disallowing a claim by Mr Perry under the Statutory Insurance Scheme (the Scheme) established pursuant to the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act), in relation to work undertaken at a property at Thornlands in the State of Queensland (the Property). Mr Perry has applied to review the Review Decision pursuant to s 87 of the QBCC Act.
By the Dismissal…

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: [2022] QCAT 234
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) dismissed the Queensland Building and Construction Commission's (QBCC) application to dismiss Errol Perry's (Mr Perry) application for review of a decision disallowing his claim under the Statutory Insurance Scheme. Mr Perry had engaged a contractor to perform roofing work, which was found to be defective. He made a claim under the Statutory Insurance Scheme, but the QBCC rejected the claim under s 61 of the Terms of Cover. Mr Perry applied to QCAT to review the QBCC's decision, and subsequently engaged another contractor to carry out rectification work. The QBCC asserted that the rectification work was done without prior written approval, precluding the claim under s 64 of the Terms of Cover. The QBCC sought to dismiss the review application under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The legal issue was whether s 64 applies to rectification work done after making the decision to refuse the claim, and whether the QBCC had shown that the review application was misconceived or lacking in substance. The Tribunal considered the provisions of the Terms of Cover and the purpose of the Scheme, and found that it was reasonably arguable that s 64 only applies to work done without written approval before the decision to allow or disallow a claim is made. The QBCC had not shown that the review application was misconceived or lacking in substance, so the application to dismiss the review application was dismissed.

Orders