Seitz v Queensland Building and Construction Commission (No 2) - [2023] QCAT 438

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Seitz v Queensland Building and Construction Commission (No 2) [2023] QCAT 438

PARTIES:

ARMIN SEITZ

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR110-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

16 November 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1. Leave is given for evidence to be put before the tribunal despite not being in a hearing book.

2. The decision made by the Queensland Building and Construction Commission of 6 June 2022 to disallow the applicant’s claim under the Queensland Home Warranty Scheme is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where it has been found that there was no defective work – where the insurance claim was made outside the 7 months’ time limit for non-structural work – whether the decision of the Queensland Building and Construction Commission should be confirmed or set aside

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

Queensland Building and Construction Commission Regulation 2018 (Qld), schedule 6

Walker v Queensland Building and Construction Commission [2021] QCAT 32

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

This is a review of a decision made by the Queensland Building and Construction Commission on 6 June 2022 to disallow a claim by Armin Seitz under the Queensland Home Warranty Scheme, on the basis that the work complained of was not defective.
I need to find the correct and preferable decision by way of a fresh hearing on the merits.[1] In doing so I have taken into account all the evidence and submissions made by Mr Seitz, and I have been assisted by the material provided by the QBCC.
[1]Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
The context of the insurance claim is that on 14 January 2022 Mr Seitz complained about certain items of building work done by the builder Win Constructions Queensland (WCQ) in constructing a new house which he purchased on 25 May 2021. After some remedial work done by the builder there were two outstanding items of work complained of – inconsistency in the paintwork to the garage ceiling and discolouration to the grout in two bathrooms.

No cover because work is not defective

The QBCC decided on 6 June 2022 that the work complained of was not defective. That decision came to me for external review and in a separate decision in GAR281-22 I have confirmed the decision of the QBCC not to issue a direction to rectify on the same basis, that the work complained of was not defective.
On that basis I must also confirm the QBCC’s decision to disallow the claim under the Home Warranty Insurance Scheme. That is because the insurance scheme provides cover for incomplete or defective work. Since there was no incomplete or defective work, there…

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: [2023] QCAT 438
Decision Date: 16 November 2023

CaseChat Overview and Summary

Seitz sought review of a decision by the Queensland Building and Construction Commission to disallow a claim under the Queensland Home Warranty Scheme. The dispute centred on whether the Commission’s decision was lawful and whether Seitz was entitled to compensation for alleged defective work. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining the validity of the Commission's decision.

The primary legal issue before the Tribunal was whether the Commission had correctly determined that Seitz's claim was time-barred under the statutory insurance scheme. Specifically, the Tribunal examined whether Seitz's claim for non-structural work, made outside the stipulated seven-month period, was validly disallowed. Another issue was whether the Commission's assessment of the absence of defective work was justified.

The Tribunal found that Seitz's claim was indeed time-barred as it was lodged beyond the seven-month period allowed for non-structural work under the statutory insurance scheme. The Tribunal also concluded that the Commission’s assessment of the absence of defective work was reasonable, given the evidence presented. Consequently, the Tribunal confirmed the Commission's decision to disallow Seitz's claim. The Tribunal held that the Commission had properly exercised its discretion and that the decision was not unlawful or unjust.

The Tribunal confirmed the Commission's decision and granted leave for additional evidence to be presented. This decision was upheld, affirming that Seitz’s claim was correctly disallowed under the statutory scheme.

Orders

Orders of the court

1. Leave is given for evidence to be put before the tribunal despite not being in a hearing book.

2. The decision made by the Queensland Building and Construction Commission of 6 June 2022 to disallow the applicant’s claim under the Queensland Home Warranty Scheme is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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