Queensland Building Services Authority v Fenwick

CITATION: Queensland Building Services Authority v Fenwick [2012] QCATA 20

PARTIES:	Queensland Building Services Authority (Applicant/Appellant)
v
Don Charles Fenwick (Respondent)

APPLICATION NUMBER: APL069-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member
Dr Bridget Cullen, Member

DELIVERED ON: 16 February 2012

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is granted for the limited purpose of the $11,000.00 prepayment issue; otherwise, leave to appeal is refused.

CATCHWORDS:

Statutory Insurance Fund – date that the reasonable cost to complete for purposes of claim is to be assessed – interpretation of Queensland Building Services Authority Statutory Insurance Policy Conditions, 7^th Ed., Clauses 1.4 and 1.6

Queensland Civil and Administrative Tribunal Act2009, s 32

Vetter v Lake Macquarie City Council [2001] 202 CLR 439 at 450-451

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 7 February 2011 the Tribunal decided that the Queensland Building Services Authority should pay to Mr Fenwick $176,563.00 from the Queensland Home Warranty Scheme.  Mr Fenwick made a claim under the Scheme as a result of the failure of his builder, Space Plus Additions Pty Ltd, to complete building work under its building contract with Mr Fenwick, entered into on 7 November 2007, for extensions and renovations to Mr Fenwick’s house at 5 Diplacus Place, Palm Beach for a total cost of $309,000.00.

1. The order was made after the Tribunal conducted a hearing on the papers to review the Authority’s decision of 27 June 2008, to refuse to pay Mr Fenwick any money from the Home Warranty Scheme.

1. In its decision, the Authority acknowledged that the cost to complete the works the subject of the Space Plus contract was $366,500.00 in accordance with a quote from JV Constructions Pty Ltd.  However, as a result of underpricing in the original Space Plus contract by $202,000.00, when adjusted under clause 1.4 of the Policy, it concluded that no monies were payable.  In coming to this decision, the Authority relied on a costing of the original contract work that it had obtained from Censeo Pty Ltd, in the total sum of $529,856.00.

1. The Authority has now appealed the Tribunal’s decision.  It is conceded by Mr Fenwick that there is an error in the calculations of the learned Member for the reason that a prepayment of $11,000.00 for site preparation and plans, in addition to the money paid for works done by Space Plus after the contract was signed, was not properly taken into account.  The adjusted figure to be paid from the fund is $156,413.75 if the Authority is not successful in this appeal.

1. By agreement between the parties, the learned Member at first instance had three issues to decide.  They were:

   (a)   What is the date at which the reasonable cost of completion is to be assessed?

   (b)   If the date determined pursuant to paragraph…