Proprietors of 'The View' v Queensland Building Services Authority [see also CA 98.428]

[1998] QCA 401

IN THE COURT OF APPEAL	[1998] QCA 401
SUPREME COURT OF QUEENSLAND

Appeal No. 825 of 1998

Brisbane

[QBSA v. The Proprietors of "The View"]

BETWEEN:

QUEENSLAND BUILDING SERVICES AUTHORITY

(Respondent) Appellant

AND:

THE PROPRIETORS OF "THE VIEW"

(Appellants)	Respondents
Pincus J.A. Thomas J.A. Chesterman J.

Judgment delivered 1 December 1998

Judgment of the Court

1.          APPEAL ALLOWED WITH COSTS.

2.          SET ASIDE ORDERS MADE BY THE DISTRICT COURT, EXCEPT THAT GIVING LEAVE TO APPEAL.

3.          ORDER IN LIEU THAT THE APPEAL TO THAT COURT BE DISMISSED WITH COSTS.

CATCHWORDS:	BUILDING AND CONSTRUCTION LAW - whether objects on land on which townhouses were constructed constitute "Residential Construction Work" within the meaning of a policy issued by the Authority - objects include retaining walls, roadways, kerbing and channelling, paths, landscaped areas and inground pool - meaning of "home".
Counsel:	Mr H B Fraser Q.C. for the appellant. Mr P D McMurdo Q.C. with him Mr M J Drysdale for the respondents.
Solicitors:	Barker Gosling for the appellant. Thomson Redhead Boyd for the respondents.
Hearing Date:	17 November 1998.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 825 of 1998

Brisbane

Before Pincus J.A.
Thomas J.A.
Chesterman J.

[QBSA v. The Proprietors of "The View"]

BETWEEN:

QUEENSLAND BUILDING SERVICES AUTHORITY

(Respondent) Appellant

AND:

THE PROPRIETORS OF "THE VIEW"

(Appellant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 1 December 1998

1. This appeal, filed by leave, challenges a decision of the District Court holding that the

   appellant Authority is obliged to pay the respondent’s claim under an insurance policy. The District

   Court (Botting D.C.J.) so held on an appeal, brought under s. 94 of the Queensland Building

   Services Authority Act 1991 ("the Act"), from a decision of Ms L Bradford-Morgan, sitting as a

   member of the Queensland Building Tribunal.

2. The issue before the Tribunal and before the District Court was whether certain objects on

   land on which a number of townhouses have been constructed constitute "Residential Construction

   Work" within the meaning of a policy issued by the Authority. Under the policy, cl. 3.1, the

   Authority has to compensate the respondent for loss "resulting from the Contractor failing to rectify defects in the Residential Construction Work after practical completion". The defective work which

   is in issue consists of structures and other objects ("the disputed objects") which are on the site of

   residential buildings (i.e. the townhouses) but do not provide support for, and are separate from the

   residential buildings. The disputed objects are retaining walls, roadways, kerbing and channelling,

   paths, landscaped areas and an inground pool.

3. The policy was issued under Part 5 of the Act, headed "The Statutory Insurance Scheme"

   and under relevant provisions of the Queensland Building Services Authority Regulation 1992

   ("the Regulation"). The dispute is whether the defects in the disputed objects are, within the meaning

   of cl. 3.1 of the policy, defects in "Residential Construction Work", a term which is defined in the

   policy as follows:

   "‘the Residential Construction Work’ means major domestic building work -

   (a)         consisting of the construction of a home or a roofed building on the site of a home (other than a home or building that is a multiple dwelling of more than 3 storeys); or

   (b)        consisting of an alteration or addition to such a home or building affecting-

(i)	its structure; or
(ii)	the external fabric or weather proofing; or
(iii)	water supply, sewerage or drainage; or
(iv)	internal fixtures

if that work is performed by a building contractor other than as a subcontractor and

which is so described in the Certificate".

This definition is the same as that given for "Residential Construction Work" in s. 4 of the Regulation.

There is a statutory definition of the term "major domestic building work"; it is defined to mean

domestic building work exceeding a certain value and "domestic building work" means building

work related to a home or associated building: see s. 4 of the Act.

1. In the reasons for judgment of the learned District Court judge, his Honour said that the

   word "home" in the definition "should be understood as meaning a house or building with its grounds

   and other appurtenances so long as they are used for residential, rather than commercial or industrial

   purposes". The Tribunal, on the other hand, thought the word "home" in the definition means "a

   house where a person lives".

2. The word "home" is not defined in the policy, but cl. 1.2 of that document says:

   "Unless the contrary intention appears, wherever terms defined by the Act or the regulation appear in this Certificate, those terms have the same meaning in the Certificate as in the Act or the regulations".

   "Home" is defined in the Act to mean:

   "any residential premises except premises constituting, or forming part of,

   commercial or industrial premises".

   The argument for the respondent amounted in substance to this, that "premises", with reference to

   residential premises, includes not only the residence but the grounds and fixtures on or in them.

   Therefore, it was said, "home" means not only the residence but its site and what is on the site.

   From that, it would follow that in the definition of "Residential Construction Work" the reference to

   "home" includes the site and that brings in the disputed objects: the retaining walls, roadways, paths

   and pool. Counsel for the Authority, on the other hand, urged on us the view that the word "home"

   in the definition of "Residential Construction Work" must mean simply a residence. The

   consequence of acceptance of that view would be that the policy relates only to loss suffered

   because of failure to rectify defects in the residence or residences insured, as well as any defects

   in any roofed building on the site occupied by such residence or residences.

3. An initial difficulty for the respondent is that the expression "home or . . . roofed building",

   read naturally, conveys the idea that the only thing covered by the policy, apart from the residence

   itself, is a roofed building on the site of the residence. Counsel for the respondent, however, argued

   that the reason for the choice of language in the definition of "Residential Construction Work" was

   that it was intended to cover, in addition to the residence and unroofed structures on its site, roofed

   buildings of a non-residential character on the site. An example mentioned was a professional

   office, built on the site; because of the definition of "major domestic building work", referred to

   above, such an office would have to be an "associated building" - i.e. a building associated with a

   home.

4. One reason for concluding that non-residential buildings were not what the drafter had in

   mind is that it is not common to find on the same site a residence or group of residences and a

   separate, commercial or professional, building. Another is that it is difficult to think of any sensible

   reason why it should have been thought proper to cover certain commercial or professional buildings

   but not others. A third is that if the intention was to cover not only residences but also certain

   commercial or professional buildings one would have expected that intention to be more explicitly

   stated. A fourth is that it is not easy to understand in what sense a commercial building could be

   said to be "associated" with a home.

5. It was said accurately on behalf of the Authority that if the word "home" in the definition itself includes the home’s site, then the expression "on the site of a home" is inappropriate. The use of that expression is consistent with the drafter having taken the word "home" to refer only to the

   residence, not its site, and is irreconcilable with the interpretation put forward by the respondent.

6. The respondent’s argument depended upon giving to the word "premises" which is in the

   definition of "home" in the Act, a meaning including "all land enclosed with a building and used as

   one with it for the purposes for which the building is used": R. v. City of Moorabbin; Ex parte

   Kans Food Products Pty Ltd [1954] V.L.R. 465 at 474. That or something like it is the ordinary

   meaning of the word, at least in a legal context, but the statutory definition of "home" only applies

   to the policy if no contrary intention appears.

7. Here, in our view, applying the statutory definition so that any object affixed to the land and

   associated with the residence is covered by the policy would achieve a result which is, judging from

   the language chosen, unlikely to have been intended. It is our opinion that the expression "home or

   a roofed building on the site of a home" does not include things on the site other than a home, in the

   ordinary sense of the word, or (other) roofed building - and any building other than the home itself

   would have to be one associated with the home.

8. There was some discussion about marginal cases such as sewerage connections, but it is

   unnecessary comprehensively to decide all disputes likely to arise as to the meaning of the word

   "home" in the definition. The disputed objects were rightly held, in the Tribunal’s decision, to be

   excluded from the policy cover.

9. The orders we make are as follows:

   1.          Appeal allowed with costs.

   2.          Set aside orders made by the District Court, except that giving leave to appeal.

   3.          Order in lieu that the appeal to that Court be dismissed with costs.