Schneider v Queensland Building and Construction Commission - [2021] QCA 155

SUPREME COURT OF QUEENSLAND

CITATION:

Schneider v Queensland Building and Construction Commission [2021] QCA 155

PARTIES:

HEINZ (HENRY) GUNTHER SCHNEIDER
MARIE LOUISE SCHNEIDER
(applicants)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)

FILE NO/S:

Appeal No 3411 of 2021
QCATA No 6 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time
Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Appeal Tribunal at Brisbane – [2020] QCATA 124

DELIVERED ON:

30 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2021

JUDGES:

Morrison and Mullins JJA and Brown J

ORDERS:

1. The application for leave to appeal is refused.

2. The applicants pay the respondent’s costs of the application for leave to appeal.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS – where the applicants entered into a standard form BSA New Home Construction Contract for a dwelling to be built on land – where a certificate of insurance under the statutory insurance scheme instituted under s 67X of the Queensland Building and Construction Commission Act 1991 (Qld) was issued – where the applicants received invoices and fraudulent photographs purporting that certain work had been done but had not in fact been completed – where the applicants made payment believing that the work had been completed – whether the payments were prepayments

Domestic Building Contracts Act 2000 (Qld), s 39
Queensland Building and Construction Commission Act 1991 (Qld), s 67X

COUNSEL:

D W Marks QC, with C J Garlick, for the applicants
S E Seefeld for the respondent

SOLICITORS:

Derek Legal for the applicants
Queensland Building and Construction Commission for the respondent

MORRISON JA: The applicants (the Schneiders) bought a block of land in Roma. They entered into a building contract with Contract Build Pty Ltd (Contract Build) to erect a house on the land. The agreed price for the construction was $284,900, to be paid in six stages:
(a)Deposit: $14,245;
(b)Base Stage: $42,735;
(c)Frame Stage: $56,980;
(d)Enclosed Stage: $71,225;
(e)Fixing Stage: $56,980; and
(f)Practical Completion: $42,735.
The first three payments were made between January and July 2014. By that time the house had been completed to the Frame Stage.
In October 2014 there was a novation of the construction contract and Line Constructions Pty Ltd (Line Constructions) became the contractor.
A certificate of insurance under the statutory insurance scheme instituted under the Queensland Building and Construction Commission Act1991 (Qld) (the QBCC Act) was issued in respect of the contract with Contract Build. Following the novation of the contract to Line Constructions, a second certificate of insurance was issued in May 2015.
In May and September 2015 Line Constructions sent the Schneiders invoices accompanied by photographs purporting to show the progress of construction on the house. The May photographs purported to show completion to the Enclosed Stage; the September photographs purported to show completion to the Fixing Stage. They lied to the Schneiders as the photographs were…

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.

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Details

Case: [2021] QCA 155
Decision Date: 30 July 2021

CaseChat Overview and Summary

Schneider v Queensland Building and Construction Commission involved the applicants who entered into a contract for the construction of a dwelling. They subsequently received invoices and fraudulent photographs that falsely claimed certain work had been completed. The applicants made payments believing the work was finished. The dispute centred on whether these payments were prepayments as per clause 1.6(b) of the statutory insurance policy. The Queensland Building and Construction Commission Appeal Tribunal ruled that the payments were indeed prepayments. The applicants sought leave to appeal this decision.

The legal issues revolved around the interpretation of the term "contract related document" in section 39 of the Queensland Building and Construction Commission Act 1991 (Qld) and whether it applied to documents created by the contractor for fraudulent purposes. The applicants argued that section 39 did not apply because the photographs were not received by the contractor but rather created by them to perpetrate a fraudulent claim. They further contended that the statutory requirement to provide a copy of a "contract related document" to the owner only applied after the completion of the work, and thus was not intended to cover situations where a contractor creates a document falsely indicating completed work.

The court found that the definition of "contract related document" in section 39 meant a document received by the building contractor from someone else, not one created by the contractor itself. The section was intended to apply to reports, notices, orders, or other documents given or issued by a supplier of services, not to documents created by the contractor for fraudulent purposes. The court concluded that the payments were prepayments for the purposes of clause 1.6(b) of the statutory insurance policy, and thus the appeal tribunal's decision was correct. There was no merit in the proposed appeal, and leave to appeal should be refused.

The court ordered that the application for leave to appeal was refused and that the applicants pay the respondent's costs of the application for leave to appeal. Both Morrison JA and Mullins JA agreed with these findings, as did Brown J.

Orders

Orders of the court

1. The application for leave to appeal is refused.

2. The applicants pay the respondent’s costs of the application for leave to appeal.

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

In my view, this point has no merit for the following reasons:(a)s 39 only applies if the building contractor “receives a contract related document”: s 39(1);(b)the photograph which is said to constitute a “contract related document” was not received by the contractor, but created by it for the purpose of perpetrating a fraudulent claim;(c)when one reads the definition of “contract related document” into s 39(1), it becomes evident that such a document is one received by the building contractor from someone else; importing the definition has the consequence that s 39 applies “if the building contractor … receives a report, notice, order or other document about the subject work given or issued by a supplier of services …”; that subsection plainly does not contemplate that the contractor might create the document and give it to itself; and(d)s 39(3) creates the obligation on the contractor to give a copy of a “contract related document” to the owner, but that obligation only arises “after the completion of the subject work”; the section is not directed at the situation of a contractor creating a document that falsely pretends that work has been completed when it has, in fact, not been completed.Conclusion For the reasons given above the Appeal Tribunal was correct to find that the two progress payments, namely $71,225 on 17 June 2015 (based on purported completion to the Enclosed Stage) and $56,980 on 11 September 2015 (based on purported completion to the Fixing Stage), were pre-payments for the purposes of clause 1.6(b) of the statutory insurance policy. Therefore, there being no merit in the proposed appeal, leave to appeal should be refused. I propose the following orders:1.The application for leave to appeal is refused.2.The applicants pay the respondent’s costs of the application for leave to appeal. MULLINS JA: I agree with Morrison JA. BROWN J: I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Schneider v Queensland Building and Construction Commission [2021] QCA 155
PARTIES:	HEINZ (HENRY) GUNTHER SCHNEIDER MARIE LOUISE SCHNEIDER (applicants) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
FILE NO/S:	Appeal No 3411 of 2021 QCATA No 6 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Appeal Tribunal at Brisbane – [2020] QCATA 124
DELIVERED ON:	30 July 2021
DELIVERED AT:	Brisbane
HEARING DATE:	15 July 2021
JUDGES:	Morrison and Mullins JJA and Brown J
ORDERS:	1. The application for leave to appeal is refused. 2. The applicants pay the respondent’s costs of the application for leave to appeal.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS – where the applicants entered into a standard form BSA New Home Construction Contract for a dwelling to be built on land – where a certificate of insurance under the statutory insurance scheme instituted under s 67X of the Queensland Building and Construction Commission Act 1991 (Qld) was issued – where the applicants received invoices and fraudulent photographs purporting that certain work had been done but had not in fact been completed – where the applicants made payment believing that the work had been completed – whether the payments were prepayments Domestic Building Contracts Act 2000 (Qld), s 39 Queensland Building and Construction Commission Act 1991 (Qld), s 67X
COUNSEL:	D W Marks QC, with C J Garlick, for the applicants S E Seefeld for the respondent
SOLICITORS:	Derek Legal for the applicants Queensland Building and Construction Commission for the respondent