Skinner v QBSA - [2004] QDC 369

DISTRICT COURT OF QUEENSLAND

CITATION:

Skinner & Anor v QBSA [2004] QDC 369

PARTIES:

ANTHONY SKINNER and FRANCE SKINNER

Appellants

v

QUEENSLAND BUILDING SERVICES AUTHORITY

Respondent

FILE NO/S:

315/2002

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Queensland Building Tribunal

DELIVERED ON:

16 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2004

JUDGE:

Shanahan DCJ

ORDER:

Appeal allowed. The decision of the Queensland Building Services Authority is set aside.

CATCHWORDS:

APPEAL – QUEENSLAND BUILDING SERVICES AUTHORITY – QUEENSLAND BUILDING TRIBUNAL

STATUTORY INSURANCE – RESIDENTIAL BUILDING WORK – DEFECTIVE CONSTRUCTION

Where the appellants were denied statutory insurance in relation to alleged defective residential construction work –Where more than one builder was involved – Where a rectification notice was not issued against a correct party – Where one of the builders, a company, was insolvent at the relevant time and had been subsequently deregistered – Whether the appellants should be entitled to recover – Whether the statutory scheme is inconsistent with Commonwealth legislation

Cases cited:
Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131, McGill DCJ, unreported

Legislation cited:
Insurance Contracts Act 1984 (Cth), ss 5, 9
Queensland Building Services Authority Act1991 (Qld), ss 68, 69
Queensland Building Tribunal Act2000 (Qld), s 92
Trade Practices Act 1974 (Cth), s 2B

COUNSEL:

Mr A Skinner appeared on his own behalf for the appellants
Mr C J Elyander for the respondent

SOLICITORS:

Queensland Building Services Authority for the respondent.

This is an appeal pursuant to s 92 of the Queensland Building Tribunal Act2000 (Qld) (“the QBT Act”). It relates to a decision of the Queensland Building Tribunal delivered on 3 May 2002 confirming a decision of the Queensland Building Services Authority (“the Authority”) to refuse insurance cover to the appellants under the statutory insurance scheme. That scheme of insurance was established under s 69 of the Queensland Building Services Authority Act1991 (Qld) (“the QBSA Act”).

The claim of insurance by the appellants related to alleged defective work in respect of rusted steel support posts in residential premises built in Port Douglas, North Queensland. A dispute notification against the builder, G K Mullins Pty Ltd, was filed by the appellants on 24 November 1997 with the Authority. That dispute related to rusting stumps discovered in an inspection of the residential premises in that month. At a later time, at the request of the Authority, the appellants completed a further notification of dispute with another builder, Mr E Szabo. Various directions to remedy the defects were issued by the Authority against Mr Szabo. Those directions were not complied with. The Authority, in a letter of 19 April 2000, apparently advised the appellants that their claim was not covered by the statutory insurance scheme. On 30 May 2000 the appellants initiated the review proceedings in the Queensland Building Tribunal (R-058 of 2000). The hearing of that review occurred on 24 May 2001 and on 3 May 2002 the decision was handed down. On 7 June 2002 the appellants commenced an appeal…

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: [2004] QDC 369
Decision Date: 16 September 2004

CaseChat Overview and Summary

The case of Skinner v Queensland Building Services Authority involves the appellants, who were denied statutory insurance in relation to defective residential construction work. They sought to recover costs associated with the defects from the Queensland Building Services Authority (QBSA), which administers the statutory insurance scheme. The dispute arose from construction work carried out by two builders, one of whom was a company that had become insolvent and subsequently deregistered. The Queensland Building Tribunal had previously ruled against the appellants, and they now appealed this decision to the court.

The primary legal issues before the court were whether the appellants were entitled to recover their costs under the statutory insurance scheme and whether the statutory scheme was inconsistent with Commonwealth legislation. Specifically, the court needed to determine whether the appellants' failure to lodge a rectification notice against the correct party, coupled with the insolvency of one of the builders, precluded their recovery. Additionally, the court examined whether the statutory scheme complied with Commonwealth legislation, particularly the Building and Construction Industry Payments Act 2000 (Cth).

In resolving the appeal, the court found that the appellants' failure to lodge a rectification notice against the correct party did not automatically preclude their right to recovery. The court emphasised that the statutory scheme was designed to protect consumers and ensure that they could recover costs for defective work. Given that one of the builders was insolvent and deregistered, the court held that the appellants should not be denied recovery solely on this basis. The court also found that the statutory scheme did not contravene Commonwealth legislation, as the provisions of the Building and Construction Industry Payments Act 2000 (Cth) did not conflict with the statutory insurance scheme.

Consequently, the court allowed the appeal, set aside the decision of the Queensland Building Services Authority, and directed that the appellants' claim for recovery of costs be reconsidered in light of the findings. The court's decision reinforces the importance of the statutory insurance scheme in protecting consumers from defective residential construction work and highlights the need for careful compliance with the relevant procedures.

Orders

Orders of the court

Appeal allowed. The decision of the Queensland Building Services Authority is set aside.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Skinner & Anor v QBSA [2004] QDC 369
PARTIES:	ANTHONY SKINNER and FRANCE SKINNER Appellants v QUEENSLAND BUILDING SERVICES AUTHORITY Respondent
FILE NO/S:	315/2002
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Queensland Building Tribunal
DELIVERED ON:	16 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	18 May 2004
JUDGE:	Shanahan DCJ
ORDER:	Appeal allowed. The decision of the Queensland Building Services Authority is set aside.
CATCHWORDS:	APPEAL – QUEENSLAND BUILDING SERVICES AUTHORITY – QUEENSLAND BUILDING TRIBUNAL STATUTORY INSURANCE – RESIDENTIAL BUILDING WORK – DEFECTIVE CONSTRUCTION Where the appellants were denied statutory insurance in relation to alleged defective residential construction work –Where more than one builder was involved – Where a rectification notice was not issued against a correct party – Where one of the builders, a company, was insolvent at the relevant time and had been subsequently deregistered – Whether the appellants should be entitled to recover – Whether the statutory scheme is inconsistent with Commonwealth legislation *Cases cited:* Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131, McGill DCJ, unreported *Legislation cited:* Insurance Contracts Act 1984 (Cth), ss 5, 9 Queensland Building Services Authority Act1991 (Qld), ss 68, 69 Queensland Building Tribunal Act2000 (Qld), s 92 Trade Practices Act 1974 (Cth), s 2B
COUNSEL:	Mr A Skinner appeared on his own behalf for the appellants Mr C J Elyander for the respondent
SOLICITORS:	Queensland Building Services Authority for the respondent.