Perry v Queensland Building and Construction Commission (no. 2) - [2023] QCAT 286

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Perry v Queensland Building and Construction Commission (no. 2) [2023] QCAT 286

PARTIES:

ERROL PERRY

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

GAR039-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

20 July 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDER:

The respondent’s decision of 13 January 2020 is set aside and substituted with a decision to decline the applicant’s claim under the Statutory Insurance Scheme on the basis that the applicant failed to obtain written approval from the respondent prior to rectifying the defective work.

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 – whether carrying out rectification work without prior written approval also precluded the claim by virtue of s 64 of the Terms of Cover – whether s 64 applies to rectification work done after making of decision to refuse applicant’s claim

Queensland Building and Construction Commission Act 1991 (Qld), 67WB(1)(a)(i)

Queensland Building and Construction Commission Regulations 2018, s 61, s 64 of Schedule 6

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

Cronin v Queensland Building and Construction Commission [2019] QCAT 14

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

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Applicant:

Self-represented

Respondent:

Norton Rose Fulbright Australia

REASONS FOR DECISION

Mr Perry seeks an order that this tribunal set aside a decision of the Queensland Building and Construction Commission (QBCC) not to allow his claim under the Statutory Insurance Scheme (Scheme) established by the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
In order to succeed Mr Perry needs to satisfy this tribunal:
(a)that he did not need to have written approval from the QBCC prior to rectifying the defective work;[1] and if he succeeds on that issue.
(b)that the building work did not form part of ‘backpacker’s accommodation, boarding house, caravan park, guest house, holiday accommodation, hostel, lodging house or motel’.[2]
[1]Queensland Building and Construction Commission Regulations 2018, section 64, Schedule 6.
[2]Ibid, s 61.
Mr Perry has not been represented in these proceedings. The law relating to the Scheme is complex, even for a lawyer. The QBCC, cognisant of its duties as a model litigant, has sought to assist the tribunal by identifying the applicant’s arguments and evidence from the various emails and other material provided to it and the tribunal. This assistance included compilation of a Hearing Book containing all relevant documents and submissions.
When Mr Perry told…

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: [2023] QCAT 286
Decision Date

CaseChat Overview and Summary

Errol Perry sought a review of a decision by the Queensland Building and Construction Commission (QBCC) to disallow his claim under the Statutory Insurance Scheme (Scheme) for defective work done by a contractor in June 2018. The QBCC disallowed the claim on the basis that the work was not eligible for assistance under the Scheme because it was building work on, or on the site of, a building or proposed building that is or forms part of a ‘backpacker’s accommodation, boarding house, caravan park, guest house, holiday accommodation, hostel, lodging house or motel’. The QBCC also rejected the claim on the basis that Mr Perry rectified the defective work without first obtaining written approval from the QBCC, which was a mandatory requirement of the Scheme. The court was required to determine whether the QBCC’s decision was correct. The court determined that the QBCC’s decision was correct. The court held that the Scheme was not intended to cover building work on premises which were at the time of the work or at the time of the claim for assistance, a ‘backpacker’s accommodation, boarding house, caravan park, guest house, holiday accommodation, hostel, lodging house or motel’. However, the court held that even if the work was residential building work, the QBCC’s rejection of the claim on the basis that Mr Perry did not obtain prior written approval from the QBCC was fatal to his claim. The court held that section 64 of the Terms of Cover applied to work done after the QBCC had disallowed the claim and that the QBCC was correct to reject the claim on that basis. The QBCC’s decision to disallow the claim was set aside and substituted with a decision to decline the claim on the basis that Mr Perry failed to obtain written approval from the QBCC prior to rectifying the defective work.

Orders