Queensland Building and Construction Commission v Schneider - [2020] QCATA 124

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Building and Construction Commission v Schneider [2020] QCATA 124

PARTIES: QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(applicant\appellant)

v

HEINZ (HENRY) GUNTHER SCHNEIDER

MARIE LOUISE SCHNEIDER

(respondent)

APPLICATION NO/S:

APL006-19

ORIGINATING APPLICATION NO/S:

GAR046-17

MATTER TYPE:

Appeals

DELIVERED ON:

21 August 2020

HEARING DATE:

21 May 2019

31 July 2019

24 September 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson
Member Poteri

ORDERS:
1.   Order (1) of the orders made on 3 December 2018 by the Tribunal at first instance is confirmed; that is, the decision to deny indemnity under the statutory insurance scheme is set aside.

2.     Orders (2), (3) and (4) of the orders made on 3 December 2018 by the Tribunal at first instance are set aside.

3.     If there is no agreement between the parties in relation to costs, the following directions apply:

(a)     The appellant is to file in the Tribunal two (2) copies and give to the respondent one (1) copy of any submissions in relation to costs, by 4:00pm on 28 September 2020;

(b)    The respondent is to file in the Tribunal two (2) copies and give to the appellant one (1) copy of any submissions in response, by 4:00pm on 19 October 2020;

(c)     The appellant is to file in the Tribunal two (2) copies and give to the respondent one (1) copy of any submissions in reply, by 4:00pm on 26 October 2020;

(d)    Unless otherwise determined by the Appeal Tribunal, a decision in relation to costs will be made by the Appeal Tribunal on the papers and without an oral hearing, not before 27 October 2020.

CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Where a Statutory insurance scheme is in place pursuant to s 67X of the Queensland Building and Construction Commission Act 1991 – where a claim has been made in relation to non-completion of a dwelling house under the insurance policy conditions – whether there is a ‘prepayment’ under the insurance policy conditions where the payment was fraudulently induced – where costs have been ordered pursuant to ss 102 of the Queensland Civil and Administrative Act 1991.

Acts Interpretation Act 1954 (Qld), s 14A

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 69, s 100, s 102

Statutory Instruments Act 1992 s 14(1), Sch 1;

Arthur v Queensland Building Services Authority [1997] QBT 165.

G Lazy J Pastoral Pty Ltd v QBSA [2000] QDC 220.

Insurance Commission (WA) v Container Handlers Pty Ltd [2012] 2 Qld R 457

Lange v Queensland Building Services Authority [2012] 2 Qld R 457

Schneider v Queensland Building and Construction Commission [2018] QCAT 412

Tashen Developments Pty Ltd v Queensland Building Services Authority [2006] CCT QR 140-06

APPEARANCES & REPRESENTATION:

Applicant:

S Seefeld Counsel

Respondent:

C Garlick Counsel

REASONS FOR DECISION

Background

This is an appeal from a decision of the Tribunal setting aside a decision of the appellant…

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.

Keep reading for free

Create a free CaseChat account to read Queensland Building and Construction Commission v Schneider and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] QCATA 124
Decision Date: 21 August 2020

CaseChat Overview and Summary

In the case of Queensland Building and Construction Commission v Schneider, the appellant, Queensland Building and Construction Commission (QBCC), sought to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) that set aside an order rejecting the respondents' insurance claim. The Schneiders filed an application for review of the QBCC’s decision to reject their insurance claim, which was ultimately successful at first instance. The appeal concerned the amount of the claim rather than its validity.

The legal issues the court was required to decide included whether the QCAT had jurisdiction to determine the amount payable under the statutory insurance scheme, whether the QCAT erred in determining the amount payable, and whether the QCAT misdirected itself in relation to the award of costs. The appeal also questioned the QCAT's process for determining costs without providing the parties with an opportunity to be heard.

The court found that the QCAT did have jurisdiction to determine the amount payable under the statutory insurance scheme. The court rejected the argument that the QCAT erred in finding that the payments made by the respondents were not 'prepayments', as they were based on fraudulent representations by Line Constructions. The court also found that the QCAT did not misdirect itself in relation to the award of costs, and that the QCAT was not required to provide an opportunity for the parties to be heard in relation to costs if the parties could not agree.

The appeal was dismissed, and orders were made confirming the QCAT's decision to set aside the QBCC's rejection of the insurance claim. If the parties could not agree on costs, directions were given for the filing of submissions in relation to costs, and a decision on costs was to be made by the Appeal Tribunal on the papers and without an oral hearing.

Orders

Orders of the court

1. Order (1) of the orders made on 3 December 2018 by the Tribunal at first instance is confirmed; that is, the decision to deny indemnity under the statutory insurance scheme is set aside.

2. Orders (2), (3) and (4) of the orders made on 3 December 2018 by the Tribunal at first instance are set aside.

3. If there is no agreement between the parties in relation to costs, the following directions apply:

(a) The appellant is to file in the Tribunal two (2) copies and give to the respondent one (1) copy of any submissions in relation to costs, by 4:00pm on 28 September 2020;

(b) The respondent is to file in the Tribunal two (2) copies and give to the appellant one (1) copy of any submissions in response, by 4:00pm on 19 October 2020;

(c) The appellant is to file in the Tribunal two (2) copies and give to the respondent one (1) copy of any submissions in reply, by 4:00pm on 26 October 2020;

(d) Unless otherwise determined by the Appeal Tribunal, a decision in relation to costs will be made by the Appeal Tribunal on the papers and without an oral hearing, not before 27 October 2020.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 27 February 2017 the Schneiders filed an application for review of the decision of QBCC to reject their insurance claim (GAR 046-17).The decision at first instance In the decision at first instance, it was held that the contract had been terminated within the required two year period, thus satisfying clause 1.7 of the Insurance Policy, and that the Schneiders were entitled to indemnity under the Policy.[13] This finding is not challenged on the appeal.[13][2018] QCAT 412, [97]-[98]. In relation to the issue of ‘prepayment’, as is noted above, at [2], the Tribunal at first instance held that the payments made following the fraudulent representations were not ‘prepayments’.[14] It was there stated:[15]They were payments made in reliance on false information and fraudulent invoices created and sent to the Schneiders by Line Constructions. The two payments made by the Schneiders to Line Constructions were ‘due’ at the time they were made, albeit that they were based on false information that was created by Line Constructions.The Schneiders lived 1,300km away from the construction site and could not reasonably perform a personal inspection. They were sent photographs by Line Constructions supposedly showing progress to the extent claimed, and received invoices in accordance with the terms of the Second Contract. They were entitled to, and did, rely on the information supplied and representations made by Line Constructions.It is not open to the QBCC to deny the Schneiders’ insurance claim on the basis of prepayment.[14]ibid, [103].[15]Ibid, [103]-[105]. The Tribunal found that the respondents were entitled to compensation under the Insurance Policy in respect of money paid by them to Line Constructions for the enclosed and fixing stage of the house, in the sum of $128,205,[16] and for the cost of deterioration of the flooring and frame arising from the effluxion of time.[17] As there was no evidence as to the detail of the required work, the parties were ordered to make submissions as to the cost of remediation (Tribunal order 3). An order was also made that the appellant pay the respondent’s costs in the sum of $35,907.85.[16][2018] QCAT 412, [122].[17]Ibid, [106]-[113]. In a letter from QBCC dated 31 January 2019 to the Tribunal, QBCC stated that it had complied with the orders requiring the payments of $128,205 and $35,907. On the other hand, by an order of the Tribunal made on 21 May 2019, the operation of order (3) of the Tribunal at first instance has been stayed.The grounds of appeal On appeal it is not argued that the respondent had not terminated the building contract within the required time frame and was not entitled to indemnity under the Insurance Policy.[18] Accordingly, it is the quantum of the claim rather than the validity of the claim itself that is in issue.[18]Letter to the Tribunal from QBCC dated 31 January 2019. In summary, the grounds of appeal are:(1) The Tribunal did not have jurisdiction to determine the amount payable under the statutory insurance scheme. (2) The Tribunal erred by failing to determine the amount payable in accordance with clause 1.5 of the Insurance Policy.(3) The Tribunal erred in finding that the payments made by the respondents based on the fraudulent representations of Line Constructions were payments that had become ‘due’ under clause 1.6(b) of the Insurance Policy.(4) The Tribunal erred by misdirecting itself as to the correct test to be applied in relation to the award of costs.(5) The Tribunal erred in determining the question of costs without providing the parties with an opportunity to be hear in relation to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.