Rajagopal v Queensland Building and Construction Commission

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Rajagopal v Queensland Building and Construction Commission [2020] QCAT 154

PARTIES:

RANGANATHAN RAJAGOPAL

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR223-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

17 March 2020

HEARING DATE:

18 February 2020

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

The decision of the Queensland Building and Construction Commission made on 14 May 2019 to disallow a claim under the statutory insurance scheme is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – GENERALLY – review of a decision to disallow a claim under the statutory insurance scheme – whether the driveway and other defective work was primary building work under the scheme

Acts Interpretation Act 1954 (Qld), s 14A

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 69, s 69A, Schedule 1 s 66
Queensland Building and Construction Commission Regulation 2003 (Qld), s 9, s 10, s 11
Queensland Building Services Authority Regulation 1992 (Qld), s 4B

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Jones v Queensland Building Services Authority [2010] QCAT 563

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
Rezaee and Anor v Queensland Building Services Authority [2011] QCATA 335

Sauverain v Queensland Building Services Authority [2000] QBT 87

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

G Phillips, in-house Legal Officer

REASONS FOR DECISION

1. Mr Rajagopal’s claim under the Queensland Building and Construction Commission’s (‘QBCC’) statutory insurance scheme (‘the SIS’) was disallowed initially on 19 March 2019 and again upon internal review by decision dated 14 May 2019 (‘the Decision’).  Mr Rajagopal seeks review of the Decision.  The SIS is established under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) as it is now known.[1]

   [1]Previously Queensland Building Services Authority Act 1991 (Qld).

2. On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration.[2]  The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[3] There is no presumption that the decision under review is correct.[4]

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24 (‘QCAT Act’).

   [3]Ibid, s 20.

   [4]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

3. The facts are essentially not in dispute. Mr Rajagopal entered into a contract for the construction of a new home with Kurrajong Steel Homes Pty Ltd (‘the Builder’) on or about 3 May 2012 (‘the Contract’). At that time the Builder was licensed by the QBCC. The scope of works under the Contract was for the construction of Mr Rajagopal’s home, the driveway, fence and other works.

4. As a result of the 2011 Brisbane floods it was an approval requirement to construct the house at a higher ground level than previously required and therefore the building pad was raised.  As a consequence, the driveway was required to be…