Queensland Building and Construction Commission & Benton v Egan

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Building and Construction Commission & Benton v Egan [2023] QCATA 29

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first applicant/appellant)

NIGEL BENTON

(second applicant/appellant)

v

ANGELA EGAN

(respondent)

APPLICATION NO/S:

APL161-21, APL166-21

ORIGINATING APPLICATION NO/S:

GAR360-19, GAR360-20

MATTER TYPE:

Appeals

DELIVERED ON:

4 April 2023

HEARING DATE:

1 February 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Peter Murphy SC

ORDERS:

1.   The Order of the Tribunal made on 17 May 2021 be set aside.

2.   In substitution for that Order, it is ordered that the decision of the Queensland Building and Construction Commission made on 15 August 2019 be confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the Tribunal at first instance determined that building works with respect to the respondent’s structure was “residential construction work” for the purposes of the Queensland Home Warranty Scheme – whether the Tribunal at first instance properly interpreted “residential construction work”, “proposed residence” and “residential purposes” as used within Part 5 of the Queensland Building and Construction Commission Act 1991 – whether the works related to a “residence” or a “related roofed building” under the Act – whether the subjective intention of an owner to reside in a structure is sufficient to qualify a site as a “proposed residence”

Acts Interpretation Act 1954, s 14A, s 14B
Building Act 1975, s 115, s 118, s 119
National Construction Code 2019, Pt A6
Queensland Building and Construction Commission Act 1991, s 67WA, s 67WC, s 67WE, s 67WF, s 67X, Pt 4, Pt 5, Sch 1B
Queensland Building and Construction Commission Regulation 2018, s 25, s 30, Sch 6, s 15, Pt 4
Queensland Civil and Administrative Tribunal Act 2009, s 3

Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation (2017) 251 FCR 40, cited
Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267, cited
IW v City of Perth (1997) 191 CLR 1, cited
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232, cited
Nilant v Macchia (2000) 178 ALR 371, cited
Pearson v Thuringowa City Council [2005] QCA 310; [2006] 1 Qd R 416, clarified
SAS Trustee Corporation v Miles (2018) 265 CLR 137, cited

APPEARANCES & REPRESENTATION:

Applicants:

T Schmidt, counsel for the Queensland Building and Construction Commission (via video link)

J Carey, solicitor of WRG Lawyers for N Benton (via video link)

Respondent:

P Travers, counsel instructed by Mackey Wales Law

REASONS FOR DECISION

[1]In January 2017, Dr Egan purchased a block of land situated at Mount Surround, about 50 kilometres from Townsville.  There was an existing structure on the land. The 2005 approval for erection of the structure described it as a “carport and awning”.  In 2015 further approval was given for a structure described as a “new shed”. 

[2]When Dr Egan purchased the land, the structure upon it was classified…