Schulz v Queensland Building and Construction Commission

CITATION: Schulz & Anor v Queensland Building and Construction Commission [2014] QCAT 427

PARTIES:	Graham Schulz Deborah Schulz (Applicants)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER: GAR407-13

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Deane

DELIVERED ON: 29 August 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The decision of the Queensland Building and Construction Commission to disallow the claim against the Queensland Home Warranty Insurance Scheme made on 14 October 2013 is confirmed.

CATCHWORDS:

REVIEW – claim for non-completion - whether statutory home warranty scheme responds - whether claim made in time under scheme

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24
Queensland Building and Construction Commission Act 1991 (Qld), s 69, s 69A, s 86, s 87

WP & SB Cusack v Raceberry Pty Ltd [2013] QCAT 330
Chitty on Contracts 26^th edition

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr and Mrs Schulz seek a review of a decision of the Queensland Building and Construction Commission (‘the Commission’) to disallow a claim under the statutory home warranty scheme (‘the Scheme’). The decision is dated 14 October 2013.

2. The Tribunal has power to review a decision to disallow a claim against the Scheme.[1]

   [1]Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) s 86(1)(h), s 87.

3. On a review the Tribunal has power to confirm or amend the Commission’s decision, set aside the decision and substitute its own or set aside the decision and return it to the Commission for reconsideration.[2] The Tribunal’s function is to reach the correct or preferable decision.[3]

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

   [3]Ibid s 20.

4. The Commission disallowed the claim against the Scheme for non-completion of work on the basis that coverage under the Scheme had expired prior to the making of the claim. The Commission relies upon clause 1.7 of the Scheme:

   The QBCC is only liable to pay for loss under this Part where the Insured has properly terminated the contract with the contractor within 2 years from the date of payment of the insurance premium or the date of entering into the contract (whichever is the earlier).

5. The facts are not in dispute. A Master Builders Residential Building Contract was signed by Mr and Mrs Schulz and the builder on 15 July 2010. A contract to purchase the land upon which the house was to be built was entered into and dated 19 July 2010. The building contract was subject to a special condition that it was subject to settlement of a contract to buy the land. A special condition of the building contract provided that the deposit was payable within seven days of settlement of the land contract.

6. The land contract settled on or about 9 September…